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Robertson v. Gray

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

January 8, 2020

DELRICO ROBERTSON, Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          George C. Smith District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case, brought by Petitioner Delrico Robertson with the assistance of counsel, is before the Court for decision on the Petition and supporting Brief (ECF Nos. 1, 2), the State Court Record (ECF No. 9), the Return of Writ (ECF No. 10), and Petitioner's Reply (ECF No. 13). Although Respondent sought and received permission to file a sur-reply (ECF No. 18, 19), he has elected not to do so (ECF No. 20).

         Litigation History

         Petitioner was indicted by the Hamilton Count grand jury on April 27, 2006, and charged with four counts of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1) (counts 1, 4) and § 2903.11(A)(2) (counts 2, 5) each with a gun specification, three counts of having a weapon while under disability in violation of Ohio Rev. Code § 2923.13(A)(3) (counts 3, 6, 8), and murder in violation of Ohio Rev. Code § 2903.02(A) (count 7) with a firearm specification. The charges arose from the March 7, 2006, shooting of Michael Willis; the March 25, 2006, shooting of Andre Hayes, and the murder of Matthew Cox in April of that same year. Convicted by a jury on one count of murder for the death of Cox, two counts of felonious assault for the shooting of Hayes, two counts of felonious assault for the shooting of Willis, and three counts of having a weapon while under a disability, Robertson was sentenced to an aggregate term of fifty years to life.

         On appeal, the Ohio First District Court of Appeals held that each set of felonious assault convictions should have been merged as allied offenses and remanded for resentencing. State v. Robertson, 2008-Ohio-2562, (Ohio App. 1st Dist. May 30, 2008)(Robertson I). The Supreme Court of Ohio declined to grant appellate review. State v. Robertson, 119 Ohio St.3d 1503 (2008).

         On February 11, 2009, the Court of Common Pleas merged the allied offenses; this did not change the aggregate sentence because the merged offenses had received concurrent sentences. Robertson appealed, asserting the allied offenses should have been vacated instead of merged. The First District Court of Appeals rejected that single assignment of error, and the Supreme Court of Ohio declined to review that decision (State v. Robertson, State Court Record, ECF No. 9, PageID 308-9, 325).

         Robertson filed his first federal habeas corpus petition in January 2010, which this Court dismissed. Robertson v. Kerns, No. 1:10-cv-0462011 U.S. Dist. LEXIS 137545 (S.D. Ohio Nov. 30, 2011), aff'd, 517 Fed. App'x 404 (6th Cir. 2013).

         On his second attempt to do so, the Hamilton County Court of Common Pleas allowed Robertson to file a delayed motion for new trial based on the post-trial deposition testimony of victim Michael Willis and then granted that motion as to all three victims. The First District affirmed as to Willis, but reversed as to the other two victims. State v. Robertson, 2017-Ohio- 7225 (Ohio Ct. App. 1st Dist. Aug. 16, 2017)(Robertson II), appellate jurisdiction declined, 152 Ohio St.3d 1420 (2018). The trial court then vacated the conviction and sentences regarding Willis, but ordered that the sentences regarding the other two victims remain in effect. The instant Petition was then filed on February 12, 2019.[1]

         Robertson pleads the following two grounds for relief:

Ground One: The Ohio courts ruled contrary to, or unreasonably applied, clearly-established [sic] Supreme Court precedent by failing to find that Robertson's due process [rights] were violated as to all convictions, as the state suppressed exculpatory evidence that---as a result of the state's decision to join all charges for trial---affected and undermined all eight convictions, requiring an order vacating all convictions and setting the matter for a new trial.
Supporting Facts: The trial court ruled that a series of “tolerable imperfections” in the case metastasized into a breach of Petitioner's constitutional rights to due process and a fair trial. These included Detective Upchurch's fabricated evidence and suppression of Willis' testimony at trial. The trial court vacated all eight convictions and ordered a new trial on all eight charges. In the face of Robertson's federal claim, the First Appellate District ignored all federal case law on the subjects, did not cite a single federal case or authority, and reversed the trial court as to five offenses.
Ground Two: The Ohio courts entered decisions that was [sic] unreasonable in the light of the trial record by failing to find that Robertson's Due Process rights were violated as to all eight convictions, requiring an order vacating all eight convictions and setting the matter for a new trial on all eight charges.
Supporting Facts: The trial court ruled that a series of “tolerable imperfections” in the case metastasized into a breach of Petitioner's constitutional rights to due process and a fair trial. These included Detective Upchurch's fabricated evidence and suppression of Willis' testimony at trial. The trial court vacated all eight convictions and ordered a new trial on all eight charge [sic]. The trial court explained the extent of Upchurch's misconduct and how her flawed investigation and lies at trial tainted and undermined all eight convictions. The First Appellate District's decision questioning the trial court's credibility findings and re-weighing the evidence was an unreasonable decision in light of the trial record.

(Petition, ECF No. 1, PageID 5-7.)

         Analysis

         The gravamen of Robertson's two grounds for relief is that the decision of the First District Court of Appeals, reversing the trial court's grant of a new trial on all eight counts of the indictment, is (1) an unreasonable application of Supreme Court precedent, and (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Robertson argues the decision is therefore not entitled to deference under either 28 U.S.C. § 2254(d)(1) or (d)(2).

         This case was initially tried before Hamilton County Common Pleas Judge Richard A. Niehaus in early 2007. (See, e.g, Judgment Entry, State Court Record, ECF No. 8, PageID 71.) The case was still assigned to Judge Niehaus when the first motion for leave to file a delayed motion for new trial was filed in May 2011 (Motion, State Court Record, ECF No. 9, PageID 326). However, that motion was summarily denied in March 2012 by Judge Nadine Allen to whom the case had been reassigned (Entry, State Court Record, ECF No. 9, PageID 342).

         Robertson's second motion for leave to file a delayed motion for new trial was filed four years after his first, on September 24, 2015, and was based on evidence asserted to be newly discovered, specifically the post-trial deposition testimony of victim Michael Willis (Request, State Court Record, ECF No. 9, PageID 371, et seq.). Judge Allen took live testimony from Willis on July 12, 2016 (Transcript, State Court Record, ECF No. 9-8, PageID 1652, et seq.), and two weeks later granted a new trial as to all of the charges (Entry, State Court Record, ECF No. 9, PageID 489-95). The State appealed, presenting two assignments of error, to wit, (1) that Judge Allen had abused her discretion in granting a new trial as to the Willis shooting, and ...


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