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Gamble v. Warden, Ross Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

July 8, 2019

SHERROD GAMBLE, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          Judge George C. Smith

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 3.) This matter is before the Court on the Petition (ECF No. 3), Respondent's Answer (ECF No. 6), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Petition be DENIED, and that this action be DISMISSED.

         Facts and Procedural History

         The Court of Appeals for Ohio's Tenth District summarized the relevant facts and procedural history of this case as follows:

In May 2015, [Petitioner] had been living for a few months on Roosevelt Ave. in Columbus along with his sister S.G., her fiancée K.S., and S.G.'s children, D.R., a 16-year-old male, and Z.G., an 8-year-old female. (Mar. 14-15, 2016 Tr. Vol. 1 at 53-54.) On the evening of May 5, 2015, [Petitioner], K.S., D.R., and Z.G. were at the apartment. (Tr. Vol. 1 at 58-61.) S.G. was working overnight as a home health aide and was not at the apartment. [Petitioner] and K.S. were drinking beer, but initially there were no problems. Between 9:00 and 10:00 p.m., D.R. went to sleep in his bedroom, which was in the basement. (Tr. Vol. 1 at 61.)
. . . Around 3:50 a.m., on May 6, 2015, D.R. was awakened when he heard arguing between [Petitioner] and K.S. on the main floor of the apartment. [Petitioner] and K.S. were not yelling, but their voices were raised, and they were arguing about K.S. waking up [Petitioner]. (Tr. Vol. 1 at 63-64.) D.R. then heard screaming and K.S. tell [Petitioner] that he would be right back. K.S. then went upstairs, probably to put on shoes, in preparation for fighting. (Tr. Vol. 1 at 64-66.) K.S. then returned to the main floor.
. . . At this point, D.R. had walked up the stairs from the basement and was in the kitchen when he heard three gunshots. (Tr. Vol. 1 at 66.) D.R. went to the living room and saw K.S., who had already been shot three times, next to [Petitioner] who was leaning back against the couch holding a gun to the side of K.S.'s right cheek. (Tr. Vol. 1 at 68-70 & 81-82.) D.R. saw a muzzle flash as appellant shot K.S. in the face, who then fell with his head landing on an ottoman. (Tr. Vol. 1 at 71, 82 & 94.) K.S. told D.R. that he needed help and wanted D.R. to call an ambulance. [Petitioner] told D.R. not to call the ambulance. (Tr. Vol. 1 at 72.)
. . . D.R. saw his younger sister, Z.G., coming down the steps from her upstairs bedroom and told her to go back upstairs. D.R. then left the house and called 911 on his cell phone. (Tr. Vol. 1 at 73-74 & 86.) D.R. told the dispatcher that K.S. had been shot. He then called his mother and went back to the house, where police had already arrived and were talking to Z.G. [Petitioner] had left the house by this time. (Tr. Vol. 1 at 130.) When officers spoke to D.R. he told them that his uncle, [Petitioner], had shot K.S. (Tr. Vol. 1 at 75 & 127-8.) He also identified [Petitioner] as the shooter in the courtroom. (Tr. Vol. 1 at 92.)
. . . Z.G. testified that she heard [Petitioner] and K.S. arguing before she went to bed and, as a result, she went upstairs and shut her bedroom door. (Tr. Vol. 1 at 115.) While she could not pinpoint an exact time, she did testify that she fell asleep after dinner when it was night time. Quite a few hours later, she was awakened by a gunshot. (Tr. Vol. 1 at 107, 115 & 118.) She was on her way downstairs when D.R. told her to go back upstairs. Z.G. initially went back to her bedroom, but then went and sat on the steps. (Tr Vol. 1 at 108.) While sitting on the steps, she saw [Petitioner] walk by her wearing a white t-shirt that resembled a tank top go into the bathroom and change his shirt. (Tr. Vol. 1 at 108-10.) [Petitioner] then left the apartment and did not return. (Tr. Vol. 1 at 113.)
S.G. testified that on May 7, 2015, she found a white tank top with blood on it in the upstairs bathroom, and her sister found a coffee can containing unused bullets in the living room, where [Petitioner] slept. (Tr. Vol. 1 at 149-52.) S.G. testified that she was not aware of, nor did she allow, any guns in her apartment. (Tr. Vol. 1 at 156.)
. . . The tank top was analyzed by the Columbus Police Laboratory and the DNA on the blood swabs were consistent with K.S.'s DNA, i.e., the blood on the t-shirt was from K.S. (Mar. 16, 2016 Tr. Vol. 2 at 260 & 262.) A firearm examiner from the Columbus Police Department testified that a bullet recovered from K.S.'s body and one of the unused bullets from the coffee can were structurally indistinguishable. (Tr. Vol. 2 at 302-08.)
Dr. John Somerset of the Franklin County Coroner's Office noted that K.S. was shot four times. K.S. suffered two gunshot wounds to his head, one to his face, and a fatal wound that entered his shoulder, traveled into his chest, and severed a major artery. (Tr. Vol. 2 at 220-21 & 224-33.) The wounds to the head and face were not “immediately fatal.” (Tr. Vol. 2 at 221.) Dr. Somerset noted that the last shot, i.e., the one to K.S.'s face that was witnessed by D.R., showed evidence of close-range firing. He opined that the shot was fired from “definitely less than a foot and probably less than six inches” away from K.S. (Tr. Vol. 2 at 230-31.)
. . . [Petitioner] was later arrested and agreed to give a statement. He denied any involvement in the shooting. [Petitioner] claimed that he left the apartment around 9:30 p.m. and went to a neighborhood bar. (Tr. Vol. 2 at 352-53 & 366.) He stated that he remained at that bar until last call at approximately 2:10 a.m., then left the bar and got a ride to his girlfriend's house, arriving between 3:00 and 3:30 a.m. (Tr. Vol. 2 at 353-57.) He stayed there for the remainder of the night.
. . . However, in addition to the positive identification of him by his nephew and niece and the presence of K.S.'s blood on his t-shirt, cell phone records from [Petitioner's] phone revealed that calls from his cell phone were placed to his girlfriend's phone and his brother's phone within minutes of the homicide. (Tr. Vol. 2 at 405-07.) Cell phone tower data showed that, at the date and time of the homicide, [Petitioner's] phone was in the general area of the homicide and was not, at any point, in the area of his girlfriend's apartment. (Tr. Vol. 2 at 413-18.) After that, calls were on towers moving south. [Petitioner's] girlfriend lived to the northwest of the incident site. (Tr. Vol. 2 at 399.)

State v. Gamble, No. 16AP-397, 2017 WL 1476305, at * 1-2 (Oh. Ct. App. April 25, 2017).

         On June 2, 2015, Petitioner was indicted for one count of aggravated murder in violation of Ohio Rev. Code § 2903.01; one count of murder in violation of Ohio Rev. Code § 2903.02; and one count of having a weapon while under a disability in violation of Ohio Rev. Code § 2923.13. (ECF No. 5, at PAGE ID ## 45-47.) The aggravated murder and the murder counts both carried firearm and repeat violent offender specifications. (Id.)

         The state appellate court described the procedural history that occurred after the indictment:

At trial, [Petitioner's] counsel orally moved the court for acquittal pursuant to Crim.R. 29, specifically addressing the prior calculation and design element of the aggravated murder count. (Tr. Vol. 2 at 435-38.) The court overruled the motion. . . . On March 18, 2016, after a five-day trial, the jury found [Petitioner] guilty of aggravated murder with specifications, and murder with specifications. The court returned a verdict finding [Petitioner] guilty of having a weapon while under disability. (Jgmt. Entry at 1.)
. . . At a separate sentencing hearing held on April 21, 2016, the aggravated murder and murder counts merged, and the state elected to proceed with sentencing on the aggravated murder count. The court sentenced [Petitioner] to life without possibility of parole for aggravated murder, 36 months on the weapon while under disability charge, 3 years on the gun specification, and 10 years on the RVO specification. (Jgmt. Entry at 2.) . . .

         Petitioner appeals and assigns the following errors:

[I.] THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.
[II.] THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.
[III.] THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

State v. Gamble, 2017 WL 1476305, at *2-3. On April 25, 2017, the state appellate court overruled those three assignments of error and affirmed the judgment of the state trial court. Id., at * 7. Although Petitioner sought an appeal of that determination, the Ohio Supreme Court declined to exercise jurisdiction over the matter on ...


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