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Oden v. Warden, North Central Corectional Complex

United States District Court, S.D. Ohio, Western Division, Cincinnati

December 2, 2019

LAVON ODEN, Petitioner,
Warden, North Central Correctional Complex, Respondent.

          Susan J. Dlott District Judge



         This habeas corpus case, brought pro se by Petitioner Lavon Oden under 28 U.S.C. § 2254, is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 4), the Warden's Return of Writ (ECF No. 5), and Petitioner's Reply (ECF No. 7). The Magistrate Judge reference in this case has been transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF No. 8).

         Litigation History

         Oden was indicted by a Hamilton County grand jury on charges of aggravated murder, murder, aggravated robbery, and having weapons while under a disability. A jury found him guilty of all charges except the aggravated murder count and the trial judge imposed a combined sentence of sixty-three years to life. 2254(3) and Oden appealed with new counsel raising six assignments of error which the Ohio First District Court of Appeals overruled. State v. Oden, 2016 Ohio App. LEXIS 3817 (1st Dist. Sept. 23, 2016), appellate jurisdiction declined, 148 Ohio St.3d 1428. Oden filed pro se an Application for Reopening under Ohio R. App.26(B), proposing four assignments of error whose omission he claimed demonstrated ineffective assistance of appellate counsel. The First District denied the Application on the merits. Oden took no appeal to the Supreme Court of Ohio, but later sought to supplement his App. R. 26(B) Application. The First District denied that request and Oden again did not appeal.

         Oden filed his Petition by placing it in the prison mail on June 7, 2018 (ECF No. 1, PageID 26). He pleads the following grounds for relief:

Ground One: The Trial Court erred as a matter of law by allowing hearsay evidence to be admitted in violation of Appellant's right to a fair and impartial trial.
Supporting Facts[1]: The Sixth Amendment's Confrontation Clause provides a criminal defendant: the right to directly confront adverse witnesses; the right to cross- examine adverse witnesses; and the right to be present at any stage of the trial that would enable the defendant to effectively cross-examine adverse witnesses.
The Confrontation Clause of the Sixth Amendment may prohibit the admission of hearsay evidence against a criminal defendant when the defendant lacks the opportunity to cross-examine the out-of-court declarant. However, the admission of out-of-court statements does not violate the Confrontation Clause if the declarant testifies at trial and is subject to cross-examination.
In this case the declarant, Darryl Craig, (Craig herein), did not testify at trial.
In the First District Court of Appeals, Opinion and Journal Entry, the court determined that much of the evidence, including: "Craig's out-of-court identification of Oden as the shooter[;] and the contents of Craig's text messages[;]" was in fact "inadmissible hearsay." Further, the court determined, "[they could] not say, [ ... ] that the results of the trial would have been different absent its admission, and that a reversal is necessary to avoid manifest injustice." Usually text messages are considered non-testimonial and are therefore not excluded as hearsay. In this case, the text messages were used to describe events that occurred immediately before the marijuana sale. Further, the text messages were certainly offer [sic] for their truth because they discussed: the alleged robbery; shooting; and who was present. The State requested Robert Johnson to identify the text messages between him and Darryl Craig, these texts are found in Mr. Craig's cell phone records that were presented as State's Exhibit 30. Darryl Craig texts often, and does not stop until he arrives at the car; this car is the very car in which the robbery and subsequent murder took place. The texts read like a journal providing all of the details about the drug transaction that is about to take place. Upon review of the text messages it is clear they are testimonial in nature; because they provide Craig's personal perspective of how the events unfolded prior to the drug deal, robbery, and murder. See (Tr. Pg. 1280-1283).
A violation of the Confrontation Clause is subject to harmless error analysis[.] Harmless error exists if it is established beyond a reasonable doubt that the violation did not contribute to the verdict. This court has previously determined, "habeas court should grant petition if it has 'grave doubt' about whether trial error had substantial and injurious effect or influence upon the jury's verdict." It is clear the inadmissible hearsay loaned substantial weight to the case that would not otherwise have existed. It is also clear this bolstered evidence influenced the jury; guiding them toward a guilty verdict, by providing an additional witness to the crime. This witness could not be discredited through cross examination. The trial court claims there was "significant admissible evidence of guilt" but does not address how this evidence was weighed in drawing their opinion.
If we were to ignore the hearsay evidence, the remaining evidence would be limited to: (I) the testimony of Curtis Boston; (2) the identification by Robert Johnson; (3) the possible location of the defendant based on cellular data; and (4) the text message by the Appellant allegedly selling a "Ruger."
While uncorroborated accomplice testimony alone can support a conviction, United States v. King, 288 Fed.Appx. 253, 256 (6th Cir. 2008), the Sixth Circuit warns that this type of testimony should be given more caution than other testimony when weighing its credibility. See 6th Cir. Pattern Jury Instruction 7 .08.
First, from the record it is clear that Boston is not the most reliable witness. Boston is a self admitted accomplice to the crime. Boston testified he was incarcerated for this murder charge as well as a separate aggravated robbery from December of 2012 which did not involve the petitioner. (Tp. Pgs. 749, 750, 751, 834). Boston sent a text message to a friend that said he "fucked up" and needed a place to go, this suggests guilt. In another text message to a friend. Boston said, "Bra, if l get locked up say Whiteshit [referring to the Petitioner, ] told you that he robbed them [and] shot." (Tp. Pgs. 802, 818, 819). Boston testified, he did not want to talk to the police but, after he was arrested and talked to his father, he told the police what happened. He admitted he did not agree to testify until he was offered a 12 year deal. (Tp. Pgs. 824, 829, 831, 836); Boston demonstrated he had motive to implicate the Petitioner, in this crime, when he testified about, The Petitioner and Boston's brother being arrested in 2011; in which, his brother pled guilty, but Petitioner beat the case. (Tp. Pg. 842); There was also testimony from Det. Karaguleff that several Crime Stoppers tips came in identifying Boston as the shooter (Tp. Pgs. I 026, I 029-1031); See also Trial Del Ex. #3. Further, these tips indicated Boston had bragged about the incident on Facebook. (Tp. Pg. 1032, 1034); Trial De(Ex. #3. These tips could lead one to believe Boston was in fact the shooter. Boston admitted to speaking to Darryl Craig, while in lock up about the case which helped him remember some facts. (Tp. Pgs. 846-847). When trial counsel made an attempt to delve into the conversation between Boston and Craig in order to discern what was discussed; the prosecution objected and the court sustained the objection. (Tp. Pgs. 847). The questions by trial counselor, James Bogens, were reasonable due to Boston's testimony; so the court sustaining the objection was clearly an abuse of judicial discretion.
Second, Robert Johnson's identification was impermissibly suggestive; and he was an unreliable witness as demonstrated below. See also Ground 5.
Upon review of Mr. Johnson's testimony and pre-trial statements; this court will find he was an unreliable witness. Mr. Johnson testified he set up a purchase of marijuana with Boston on January 30, 2013. (Tp. pgs. 329-330); See also States Ex. #17. Mr. Johnson testified that on January 301h, he was driving with Da'Shawn Wheeler, in the front passenger seat, and Darryl Craig behind him. He picked up Boston and drove to Burton Avenue. Mr. Johnson testified, Boston got out of the car and went into an apartment building. It was dark at the time. Mr. Johnson testified, he was getting very nervous since Boston was gone a long time. (Tp. pgs. 343, 346, 347, 348, 350, 352, 356, 357). The buyer asked to see the marijuana and opened the car door. Mr. Craig showed him the marijuana, and then the buyer pulled out a big, black gun while Boston stood back. Mr. Johnson admitted he told the police, on the night of the incident, that the gun was a silver .40 caliber Glock. (Tp. 359, 363, 365, 370; Tp. 370, 406). Mr. Johnson testified, "They said, 'You know what time it is, give me everything." Mr. Johnson testified he then took off, and as he did, the buyer fired one shot through the back window. (Tp. Pgs. 367-368, 372). Mr. Johnson admitted he could not tell the build of the shooter, he admitted he could not tell if the shooter had facial hair or what hand the shooter was holding the gun with. (Tp. pgs. 407, 408, 411). Mr. Johnson identified Appellant as the shooter, six days after the incident, but when he spoke to the police on the night of the incident he could not identify the shooter. Mr. Johnson admitted he lied to the police about the marijuana deal. He also admitted he lied when he said the shooter took them by surprise. He admitted he did not mention that Boston was present during either interview. (Tp. 378, 387, 389, 406, 409, 410). Mr. Johnson testified he selected Appellants photo from lineup, and that he was 90% sure it was him. (Tp. Pgs. 390, 393, 396). Detective K.araguleff testified Mr. Johnson told him the shooter was 5'6" or ST' tall, dark skinned black male with a scar on his nose. (Tp. Pgs. 949, I 037). This Petitioner does not have a scar on his nose.
Most of the factors that Dr. Berry testified to, about problems with identification, happened here. Mr. Johnson did not know the shooter, it happened quickly, and there was a weapon involved which put Mr. Johnson in an extreme stress situation. This is in addition to the fact Mr. Johnson was in the front seat so his ability to see the shooter clearly is doubtful. Mr. Johnson could not have seen who fired the shot either because the shot was fired after he drove off. Mr. Johnson admitted to detectives on that night he could not identify the shooter, but six days later he could. This is a concern since Dr. Berry testified memory can decay after a period of time, and six days is not an ideal length of time. Further, on January 30thMr. Johnson told detectives the gun involved was a silver .40 caliber Glock, yet, trial, it was a big, black gun. As Dr. Berry testified, memory can still change, even assuming it was properly coded at the time. Another significant concern was the fact Mr. Johnson never mentioned Boston's involvement to the police during either of his police interviews.
Third, Agent Moledor opined, the Petitioner was in the vicinity of the shooting, based upon historic cell phone data, the fact is the Petitioner could have been anywhere within a 21 mile radius according to the expert testimony from Mr. Schenk. This is also assuming the signal went to the closest tower. (Emphasis added). This is a big assumption, considering all the factors that could interfere and cause the signal to go elsewhere. Both witnesses agreed the only way to pinpoint a person's location from cellular data is through triangulation; this technique though was not used. Even assuming Agent Moledor was correct and the Petitioner was in the vicinity, this can be easily explained from testimony that the Petitioner's girlfriend lived in the apartment complex near the shooting. This could explain why his phone was in the vicinity. Further, if the court examined the Petitioner's cellular data; they would find the Petitioner often spends time in the vicinity of this cellular tower.
Fourth, Robert Lenhoff, a firearms examiner, testified the bullet recovered was consistent with 9 mm Luger ammunition; which could have been shot from 30-35 different brands of firearms. Mr. Lenhoff testified there were no guns submitted for comparison. (Tp. Pgs. 904, 919, 920, 921).
Detective Karaguleff testified the car door handle was swabbed for DNA, a mixture of DNA from three unknown suspects was found and the Petitioner was excluded from being a contributor. (Tp. Pg. IO 17). This supports the Petitioner's claim that he was not involved. If, as testified by Johnson: the shooter opened the door; and the Petitioner is the shooter; then the Petitioner's DNA should have been a contributor.
We disagree with the trial courts assessment that the remaining evidence was sufficient to support conviction, especially if this court were to consider this issue with the other plain errors for cumulative error. The cumulative error value clearly demonstrates a necessity for relief.
Ground Two: The trial court erred as a matter of law by overruling appellant's motion for a mistrial.
Supporting Facts: Pursuant to the manifest necessity doctrine, a mistrial should not be declared unless there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. The Perez approach abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. Instead, Perez prescribes a case-by-case approach, taking into account all the facts and circumstances to determine whether there was a manifest (i.e., a high degree of) necessity for the mistrial declaration.
Although trial courts should be accorded deference in making a determination of manifest necessity, they must employ sound discretion and must consider the defendant's right to end his confrontation with the state through a verdict from the particular tribunal he faces. Sound discretion exists where the trial judge acts responsibly and deliberately rather than irrationally or irresponsibly.
Absent a showing of prejudice, the plain error rule does not require reversal of a conviction where a witness may have violated a separation order.
In this case, Petitioner made a motion for mistrial after hearing testimony from Boston that he spoke to the witness Darryl Craig, while in lock up. Boston testified Craig helped him remember some facts about the case. See (Tr. Pg. 846-847.) The only fact we know Craig helped Boston remember was regarding the theft of the earring. (Tr. Pg. 845 - 846.) The trial court had earlier established a separation order between Boston and Craig; that extended to their being separated in the county jail. Boston admitted his testimony was influenced by his conversations with Craig.
It is unclear how Boston's testimony was influenced, because when the Petitioner's trial counsel attempted to question Boston about what was discussed, the prosecution objected and the trial court sustained the objection. When the trial court sustained the objection, it was an abuse of judicial discretion because; Boston's own testimony demonstrated the line of questioning was necessary to determine how Craig influenced his testimony. See (Tr. Pg. 846-848). It is possible and likely that parts of Boston's testimony were not from his personal account of the events; but instead are a direct result of his collaboration with Craig. This is a very troubling situation because it is difficult to determine what may or may not have been influenced expo [sic] facto.
Further, when the trial court sustained the prosecutions objection preventing trial counsel's inquiry into this issue; trial counsel was denied adversarial testing to determine if and how Craig influenced Boston's testimony. This invokes the third prong of the Cronic standard; which "occurs when counsel is placed in circumstances in which competent counsel very likely could not render assistance," United States v. Cronic, 466 U.S. 648, at 659 (May 14th 1984). The court removed counsel's ability to demonstrate any possible prejudice to the Petitioner when they prevented the necessary questioning to determine if any prejudicial influence occurred to Boston's testimony. Since, counsel was prevented from performing the necessary "adversarial testing" to determine the possible prejudice, prejudice must be presumed pursuant to Cronic.
Further, the court may attempt to argue that any prejudice was removed because Craig did not testify. This is not true because Craig's testimony was improperly introduced as hearsay and further this would not remove Craig's influence upon Boston's testimony. Boston's testimony may have been in part Craig's testimony due to their admitted collaboration.
Since, the Petitioner's convictions were based solely on the testimony of these witnesses; the violation of the separation order was so significant that a fair trial was no longer possible. The trial court therefore abused its discretion by: overruling the motion; and preventing counsel's inquiry into Craig and Boston's conversation.
This issue constitutes a plain error and is subject to cumulative error review.
Ground Three: Appellant was denied effective assistance of counsel in violation of his constitutional rights thus prejudicing his right to a fair trial.
Supporting Facts: To establish ineffective assistance of counsel, a habeas petitioner must show that his counsel provided deficient performance and such deficient performance prejudiced his defense so as to render the trial unfair and the result unreliable. Under AEDPA, a state court's ruling on ineffective assistance of counsel claims will only be disturbed if it is an unreasonable application of Strickland. Focusing on the performance component, the U.S. Supreme Court explained when a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. A reviewing court's scrutiny of counsel's performance is highly deferential; indeed, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The reviewing court must also not indulge in hindsight, but must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors.
To satisfy the prejudice prong of the Strickland test, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A habeas petitioner is not entitled to a presumption of prejudice unless it can be said that his counsel failed meaningfully to oppose the prosecution's case. Where one is left with pure speculation on whether the outcome of the trial or the penalty phase could have been any different, there is an insufficient showing of prejudice.
(1) Counsel was Ineffective for Failing to Object to Hearsay Statements
In this case, Petitioner argues his trial counsel was ineffective for failing to object to the hearsay statements as set forth in Ground One, thus limiting this Court's ability to review that plain error. Petitioner reminds the court to take in consideration the admitted inadmissible evidence, from the appellate court[‘]s decision, thus citing: Craig's out-of-court identification of Oden as the shooter; and the contents of Craig's text messages. The appellate court determined this evidence is inadmissible in their opinion and journal entry. See State v. Oden. 2016 Ohio Apo. LEXIS 3817 (Although much of this evidence was inadmissible hearsay, we cannot say, in light of the significant, admissible evidence of guilt, that the results of the trial would have been different absent its admission, and that a reversal is necessary to avoid a manifest injustice.)
It is clear from the facts that counsel's failure to object to the evidence was unreasonable considering, the context of the circumstances at the time of the alleged errors. Counsel's failure to object allowed the state to introduce a third eyewitness, to the jury, that was never subject to cross examination.
"Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No. specific showing of prejudice was required in Davis v. Alaska. 415 U.S. 308 (1974), because the petitioner bad been 'denied the right of effective cross-examination' which 'would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Id., at 318 (citing Smith v. Illinois, 390 U.S. 129, 131 (1968), and Brookhart v. Janis. 384 U.S. l, 3 (1966))." quoting United States v. Cronic. 466 U.S. 648, at 659 (May l4th 1984).
"Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Id. at 660.
"The United States Court of Appeals for the Sixth Circuit recently explained that, pursuant to United States v. Cronic. 466 U.S. 648, 80 L.Ed.2d 657, 104 S.Ct. 2039 (1984), and Bell v. Cone, 535 U.S. 685, 152 L.Ed.2d 914, 122 S, Ct, 1843 (2002), three types of cases warrant Cronic's presumption-of-prejudice analysis rather than Strickland's two-prong test of a deficient performance and resulting prejudice. Mitchell v. Mason. 325 F.3d 732. 742 (6th Cir. 2003). The first type of circumstance that warrants a presumption-of-prejudice analysis is the complete denial of counsel at a critical stage of the proceedings; the second is when counsel fails to subject the prosecution's case to meaningful adversarial testing; and the third occurs when counsel is placed in circumstances in which competent counsel very likely could not render assistance. Id." Meade v. Lavigne, 265 F.Supp.2d 849.
In the case at hand, the Petitioner was denied the right to cross-examine Darryl Craig which caused a violation of the second and third prong of Cronic. resulting in a 'constitutional error' of the 'first magnitude' of which no amount of showing of want of prejudice could cure. Trial counsel was placed in circumstances in which competent counsel very likely could not render assistance, because he could not discredit Craig's testimony. The denial of cross-examination caused trial counsel to be unable to subject the prosecutions case to adversarial testing.
If prejudice is to be presumed in a situation denying the Petitioner to meaningful adversarial testing, as demonstrated above, then prejudice must be presumed in this case.
As described above, pursuant to Strickland, "[a] habeas petitioner is not entitled to a presumption of prejudice unless it can be said that his counsel failed meaningfully to oppose the prosecution's case." The AEDP A standard, above, ·demonstrates an incorporation of Cronic into the Strickland standard; If prejudice is to be presumed then the appellate courts application of the Strickland standard in requiring the outcome of the trial to be different was in error. The appellate court clearly did not review the case taking into consideration the Cronic exceptions. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052. 80 L.Ed.2d 674 (Mav, 14th 1984) and United States v. Cronic, 466 U.S. 648, at 659 (May 14th 1984).
The appellate court already determined, "much of this [hearsay] evidence was inadmissible" this "include[ed) Craig's out-of-court identification of Oden as the shooter and the content of Craig's text messages." State v. Oden, 2016 Ohio App. LEXIS 3817 at ¶ 4. Therefore, the first prong requiring: the petitioner to show that the counsel's representation fell below a reasonable standard; has already been determined and this court can proceed directly to the "prejudice" prong.
The Supreme Court explained that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 698. In evaluating whether a petitioner satisfies the prejudice prong, a court must ask "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 122 L.Ed.2d 180, 113 S.Ct. 838 (1993) (**189) (citing Strickland. 466 U.S. at 687); see also Combs, 205 F.3d at 278 (quoting same); Tucker, 181 F.3d at 754-55; Chandler, 813 F.2d at 781-82; Jamison v. Collins, 100 F.Supp.2d 647 at 723-724.
Prejudice can be demonstrated under the Strickland standard because; the hearsay evidence that was introduced influenced the jury in drawing the conclusion of guilt. The identification by Darryl Craig, see State's Exhibit #11 from Trial, which bolstered Robert Johnson's identification and provided the prosecution with a key witness that could not be subjected to cross examination. In a similar manner Craig's text messages were unable to be subjected to adversarial testing because Darryl Craig did not testify. In addition, the opportunity for testing of Craig's testimony for credibility and reliability was completely removed. Therefore, trial counsel's ability to subject this testimony to adversarial testing was completely removed In conclusion. the lack of adversarial testing of the hearsay evidence by trial counsel rendered the trial proceedings fundamentally unfair. When trial proceedings are "fundamentally unfair'' prejudice has been demonstrated pursuant to Lockhart. Cronic and Strickland.
Further, if this court were to determine this issue is a harmless error under Strickland or Cronic, this issue amounts to a plain error and is ...

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