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Everson v. Bracy

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

July 15, 2019

REGINALD EVERSON, Pro Se, Petitioner
v.
WARDEN CHARMAINE BRACY, Respondent

          ORDER

          SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE

         On May 8, 2017, Pro Se Petitioner Reginald Everson (“Petitioner” or “Everson”) filed a Petition for Writ of Habeas Corpus (“2254 Petition”) (Pet., ECF No. 1) pursuant to 28 U.S.C. § 2254 in the above-captioned case, challenging his conviction and sentence on one count of aggravated murder with a firearm specification (Count 1), and one count of having a weapon under disability (Count 2). As a result of the conviction, Petitioner was sentenced to 30 years to life for the aggravated murder with a consecutive term of five years for the firearm specification, and three consecutive years for having a weapon under disability, resulting in an aggregate term of 38 years to life imprisonment.[1] He argues that his § 2254 Petition should be granted based on the following grounds for relief and supporting facts:

GROUND ONE: The trial court committed reversible error when it allowed evidence of an out of court statement of the victim in violation of the Confrontation Clause set forth in the Sixth Amendment to the U.S. Constitution.
Supporting Facts: The trial court allowed the out of court statement of the victim that “Reg shot me.” The statement was not determined to be a dying declaration. The court improperly allowed the statement implicating Petitioner as the person who shot the victim, when the victim was under the influence of drugs and the statement was hearsay.
GROUND TWO: Petitioner was denied his constitutional right to confront and cross-examine the witness against him when the court permitted impermissible hearsay testimony and where such testimony was not harmless beyond a reasonable doubt.
Supporting Facts: Trial court improperly admitted the false out of court statement of Petitioner's uncle that Petitioner had access to a car similar to the one used in the crimes involved in this case. The evidence was false and prejudicial and improperly admitted, depriving Petitioner of a fair trial.
GROUND THREE: The trial court committed reversible error by excluding relevant and proper cross-examination evidence.
Supporting Facts: The trial court granted the State's motion in limine to prevent autopsy evidence that there were drugs in the victim's system at the time of the shooting. This violated the Petitioner's right to confront his accusers. The jury is entitled to all information that might bear on the accuracy and the truth of a witness's testimony. As the victim's “dying declaration” was [used] to convict the Petitioner, the accuracy of that statement and credibility of the statement would be affected by the intoxication of the declarant.
GROUND FOUR: The trial court committed reversible error by admitting 911 recordings under the excited utterances exception[] to the hearsay exclusion rule which prevented Petitioner from receiving a fair trial.
Supporting facts: Petitioner was denied the right to confront the witnesses against him when the 911 testimonial recordings of witnesses that were recorded on the day the crimes were committed; but the witnesses were never called to testify at trial. The State did not mention in its motion in limine that the statements were non-testimonial. Petitioner was prevented from receiving a fair tria1 by playing the highly emotionally charged recordings to prey upon the passions of the jurors. No. evidence was present in the recordings to implicate Petitioner in the crimes.
GROUND FIVE: The introduction into evidence of the findings of the autopsy report by the testimony of the State's expert medical witness violated Petitioner's rights under the Confrontation Clause as set forth in the Sixth Amendment to the U.S. Constitution.
Supporting Facts: The State's expert medical witness was allowed to testify on evidence from the autopsy report when he was not the one who performed the autopsy nor any tests that were part of the autopsy. Petitioner was prevented from confronting the actual person who generated the examination and test findings.
GROUND SIX: Petitioner was denied Due Process and Equal Protection under the law when the trial court failed to render a decision with regard to the Petitioner's Motion[] to Suppress Eyewitness testimony, said motion to suppress being based on Petitioner's Fifth Amendment right to Due Process and Sixth Amendment right to counsel under the U.S. Constitution made applicable to the States under the Fourteenth Amendment to the U.S. Constitution.
Supporting Facts: No. decision based on the Motion to Suppress, written or otherwise, resolving the issues of making essential factual findings can be found on the record of this case. The trial court never decided or ruled on the Motion to Petitioner's prejudice, depriving him of a fair trial as the trial court failed to make any determinations on ...

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