United States District Court, S.D. Ohio, Eastern Division
George C. Smith
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
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
and Procedural History
Court of Appeals for Ohio's Tenth District summarized the
relevant facts and procedural history of this case as
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
. . . 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
. . . 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).
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.)
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.) . . .
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