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Carosiello v. Harris

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

September 27, 2019

NICHOLAS CAROSIELLO, Petitioner,
v.
WARDEN BRANDESHAWN HARRIS, Respondent.

          Christopher A. Boyko, Judge.

          REPORT AND RECOMMENDATION

          James R. Knepp II United States Magistrate Judge.

         Introduction

         Pro se Petitioner Nicolas[1] Carosiello (“Petitioner”), a prisoner in state custody, filed a Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). (Doc. 1). He subsequently filed an Amended Petition. (Doc. 8-1). Respondent Warden Brandeshawn Harris (“Respondent”) filed an Answer (Doc. 7) and Amended Answer (Doc. 12). Petitioner has also filed a Motion to Dismiss without prejudice (Doc. 20), which Respondent opposed (Doc. 21), and to which Petitioner replied (Doc. 22). Also pending are Petitioner's Motions for Expansion of the Record (Doc. 15) and Production of the Record (Doc. 16). The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Doc. 3). For the reasons discussed below, the undersigned recommends Petitioner's Motion to Dismiss without prejudice (Doc. 20) be GRANTED and the Amended Petition (Doc. 8-1) be DISMISSED without prejudice

         Factual Background

         For the purposes of habeas corpus review of state court decisions, findings of fact made by a state court are presumed correct and can only be contravened if the habeas petitioner shows, by clear and convincing evidence, erroneous factual findings by the state court. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio Seventh District Court of Appeals set forth the following facts on direct appeal:

{¶ 2} Appellant is a known drug dealer who kept large amounts of marijuana and cash inside his residence, which is located in Wellsville. (12/29/15 Trial Tr., pp. 726, 892, 965.) On August 11, 2011, four people intended to break into his house to steal his drugs and money. Id. at pp. 733, 896, 967. This group of would-be thieves consisted of Holly Carosiello (the victim and Appellant's estranged wife), Jamie Adkins (Holly's brother), Jordan Gainer (Holly's cousin), and Johnny Paroda (Holly's cousin). Id. at pp. 896-899, 767. However, when they arrived at Appellant's house, they saw people inside and left.
{¶ 3} The next morning, the group initiated a second attempt to break into Appellant's house. Id. at pp. 734. This time Holly was absent and the group was joined by Raymont Bryant, Tonya Sinkbeil and her niece. Jordan knocked on Appellant's back door and entered the house. Id. at p. 1214. On opening the door, he encountered Appellant's mother and a large aggressive dog. Jordan identified himself as a friend of Appellant and asked if he was home. When Appellant's mother angrily ordered him out of the house, he left.
{¶ 4} Appellant's mother called him to tell him that someone had entered their house looking for him. Appellant phoned several acquaintances in an attempt to identify this person. Around 4:00 p.m., Johnny called Appellant and told him that Jamie, Jordan, and Raymont had been to his house to steal his drugs and money, and that they would be back. He did not tell Appellant that he was involved.
{¶ 5} Appellant asked Johnny to find out when the thieves planned to return. Id. at p. 906. Meanwhile, Appellant called his brother, Tony Carosiello, and his friend, Brian Specht, and asked them to come to the house. Id. at p. 742. Brian brought his girlfriend. Appellant's girlfriend, Martina Michael, was also present. Appellant hid his money and moved his drugs deep into a barn on the property. He moved all the cars to a field behind the house. Id. at pp. 742, 1094, 1355. Appellant's goal was to create the appearance that the house was empty. Appellant and his friends then concealed themselves in the field behind the house and waited for the thieves to arrive. Id. at pp. 743, 864. Appellant, who was armed with a rifle and a handgun, maintained contact with Johnny. Id. at pp. 749, 864, 907-909, 1279-1280. Appellant's mother and stepfather waited inside the house. The stepfather was armed with a gun.
{¶ 6} Appellant instructed Johnny to tell Jamie that he would be out of the house for a few hours and that his mother and stepfather were out of town for a funeral. Johnny continually updated Appellant as to whether and when the thieves would arrive. At some point, Appellant believed that they were not coming, and his friends left. Appellant went inside to watch television with Martina, his mother, and his stepfather.
{¶ 7} Around 9:30 p.m., Johnny called Appellant and told him that the thieves were on their way to the house after all. Appellant told Martina to call Tony and instruct him to stay away from the house, because he knew the thieves would not return if they saw Tony. Id. at p. 752. Tony told Appellant that a red Sunfire he believed to be Holly's, and carrying a group of people, passed his car. Id. at pp. 753, 1035- 1036, 1098. Appellant also texted Brian and told him not to come to the house. Brian texted in reply: “[k]ill those m* * * f* * *ers.” Id. at p. 871.
{¶ 8} Holly drove past Appellant's house and the thieves determined that the house appeared empty. This group now included Holly, her boyfriend Josh Rudder, Jamie, and Dustin Green. Jamie texted Johnny to ensure that no one was home and Johnny swore that the house was empty. Id. at p. 978. Josh stayed in the car and drove off, leaving Holly, Jamie, and Dustin at the house. Dustin stayed on one side of the house as a lookout. Jamie knocked on the back door. When no one answered, Jamie unsuccessfully tried to kick down the door. Id. at p. 980. When his efforts failed, he and Holly decided to lift her to Appellant's window, which was above the back door, so that she could climb inside the house. Jamie attempted to push in an air conditioner unit that was sitting in the window. Id. at p. 983. At first, he was met with resistance. Then, suddenly, the unit slid smoothly inside the house. While this was occurring, Appellant was waiting in his room, armed with a .22 caliber pistol. Id. at p. 1294.
{¶ 9} Once the air conditioner was out of the way, Jamie lifted Holly to the window. Id. at p. 984. She had managed to climb partially inside when Appellant fired his gun. The shot hit Holly between her eyes. Jamie saw a flash as Holly fell out of the window and landed on a cement staircase that led to the basement. Appellant then leaned out of his window, firing his gun several times and yelling, “[y]ou robbed the wrong house.” Id. Jamie tried to get to Holly, but when he saw the back door open, he and Dustin fled as Appellant fired into the backyard. Shortly thereafter, Martina went outside and heard Appellant say, “[o]h, my God, I shot Holly.” Id. at p. 756.
{¶ 10} Martina called Tony and told him, “I think [Appellant] just shot Holly.” Id. at p. 1100. Shortly thereafter, Tony arrived with his girlfriend Roxanne Lucas and a friend, Michael Johnston. When they arrived, Martina was crying and said, “Holly is dead.” Id. at p. 1064. Roxanne, who is a nurse, checked Holly and told Appellant to call 911, because she thought she felt a faint pulse. Id. at p. 1066. Appellant told his family, “[y]ou can't tell them I shot her. Don't tell them I shot her.” Id. at p. 761. He also tried to convince his mother and Martina to tell the police that they shot Holly. Appellant was apparently prohibited from being in possession of a gun due to a previous criminal conviction. Shortly thereafter, Tony left, and Appellant and his stepfather began hiding the drugs and putting their guns away. At some point, Appellant's stepfather did call 911.
{¶ 11} The first responder to arrive was Officer Scott Angelo of the Ohio Department of Natural Resources. Id. at p. 453. He heard the call on his radio and offered to assist at the scene. He testified that Appellant and his stepfather were outside and Appellant's mother and Martina were inside the house when he arrived. He asked Martina and Appellant's mother to exit the house, since he was under the impression that an intruder may have been inside. Deputy Kevin Shulas was the next to arrive at the scene. Both Officer Angelo and Dep. Shulas testified that Appellant seemed calm and collected and that no one in the family told them that there had been a shooting. Id. at pp. 488, 539.
{¶ 12} Appellant initially told investigators that he had heard no gunshots during the encounter. Ultimately, he made four statements to investigators which he later admitted were untruthful. In these statements, he claimed that he saw a man in the house and he assumed that man killed Holly. However, several witnesses came forward and implicated Appellant in the shooting. One of these witnesses was his girlfriend. Sometime later, Appellant's attorney convinced him to give a truthful statement. While he admitted to Det. Allan Young that he shot Holly, he claimed to have wildly fired his shot at a “shadow.” {¶ 13} Appellant was charged with one count of aggravated murder, an unspecified felony in violation of R.C. 2903.01(A), three counts of tampering with evidence, a felony of the third degree in violation of R.C. 2921.12(A)(1), one count of possession of drugs in violation of R.C. 2925.11(A), and three attendant firearm specifications.
{¶ 14} At trial, the state theorized that Appellant lured the would-be thieves to enter the house on the premise that it was empty, with the intent to ambush them once inside. In response, Appellant claimed that he acted in self-defense in accordance with the “castle doctrine.” The jury found Appellant guilty on all counts. However, the jury found that the state had not offered adequate proof as to the amount of drugs in Appellant's possession, and his conviction for possession of drugs was reduced to a minor misdemeanor.
{¶ 15} On April 10, 2015, the trial court sentenced Appellant to life in prison without the possibility of parole for aggravated murder, 36 months of incarceration on each of the three counts of tampering with evidence, three years of incarceration on one firearm specification and one year for the other two firearm specifications. The court also ordered Appellant to pay a $150 fine and ordered that his driver's license be suspended for possession of drugs. The trial court ordered all of the sentences to run consecutively. Appellant timely appeals his convictions.

State v. Carosiello, 2017 WL 4548327, at *1-3 (Ohio Ct. App.) (“Carosiello I”).

         Procedural History

         State Court Conviction

         In July 2013, a Columbiana County, Ohio grand jury indicted Petitioner one count of aggravated murder with a firearm specification, three counts of evidence tampering (two with firearm specifications), and one count of drug possession. (Ex. 1, Doc. 7-1, at 5-6); see also Ex. 2, Doc. 7-1, at 7-8 (bill of particulars). Petitioner, through counsel, pleaded not guilty. (Ex. 3, Doc. 7-1, at 9).

         After a trial, a jury found Petitioner guilty of aggravated murder with a firearm specification, three counts of evidence tampering (two with firearm specifications), and one count of drug possession, but not in the amount listed. (Ex. 4, Doc. 7-1, at 10-19); see also Ex. 5, Doc. 7-1, at 20-23 (judgment entry). On April 10, 2015, the trial judge sentenced Petitioner to life in prison without parole for the aggravated murder charge, 36 months on each of the three evidence tampering charges, three years on one firearm specification, and one year for the other two firearm specifications; the sentences were to be served consecutively. (Ex. 6, Doc. 7-1, at 25-28).

         Direct Appeal

         Through counsel, Petitioner filed a timely notice of appeal. (Ex. 7, Doc. 7-1, at 29). In his appellate merit brief, he raised two assignments of error:

1. Nicolas Carosiello's convictions were not supported by sufficient evidence in violation of Nick's right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Ohio Constitution. April 13, 2015 Entry; T.pp. 447-1204.
Issues presented for review:
1. The State did not rebut the presumption that Nick could use defensive force against an unlawful intruder in his home. Should this Court reverse his convictions because the State failed to rebut the Castle Doctrine presumption?
2. The State presented insufficient evidence to support a conviction for aggravated murder. Should this Court reverse his convictions for aggravated murder because the State failed to support his conviction ...

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