567 F.3d 191 (6th Cir. 2009), 06-4037, Brown v. Konteh

Docket Nº:06-4037, 06-4043.
Citation:567 F.3d 191
Opinion Judge:MARTHA CRAIG DAUGHTREY, Circuit Judge.
Party Name:Gerald L. BROWN, Petitioner-Appellant, v. Khelleh KONTEH, Warden, Respondent-Appellee.
Attorney:ARGUED: Andrew P. Avellano, Columbus, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Andrew P. Avellano, Columbus, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.
Judge Panel:Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
Case Date:June 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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567 F.3d 191 (6th Cir. 2009)

Gerald L. BROWN, Petitioner-Appellant,


Khelleh KONTEH, Warden, Respondent-Appellee.

Nos. 06-4037, 06-4043.

United States Court of Appeals, Sixth Circuit.

June 2, 2009

Argued: April 25, 2008.

Rehearing and Rehearing En Banc Denied Aug. 7, 2009.

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Andrew P. Avellano, Columbus, Ohio, for Appellant.

M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.


Andrew P. Avellano, Columbus, Ohio, for Appellant.

M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.



A violent rampage through the Beacon Hill Apartment complex in Columbus, Ohio, on August 14, 2001, resulted in the burglary of two apartments, three aggravated robberies, two vicious beatings, and a murder. The petitioner, Gerald L. Brown, Jr., was eventually convicted for the numerous crimes. Although the State of Ohio sought to execute Brown for his participation in the offenses, a three-judge panel that heard the evidence against him sentenced him instead to life in prison without consideration for parole for 69 years. The petitioner then unsuccessfully attempted to overturn his convictions both through the Ohio state court appeals process and through habeas corpus proceedings in federal district court. Brown now appeals from the district court's denial of his habeas petition, alleging only that the Ohio state courts unreasonably concluded that the evidence adduced at his trial was legally sufficient to support the various convictions. For the reasons set forth below, we affirm the district court's ruling in part, reverse in part, and remand the case for entry of such orders as are appropriate and necessary to comply with this opinion.


Because Brown's habeas petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), factual determinations made by the state courts are presumed to

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be correct. See 28 U.S.C. § 2254(e)(1). Moreover, only by clear and convincing evidence can a petitioner overcome that statutory presumption. See id. To demonstrate the enormity of Brown's task in this appeal, we quote at length from the recitation of the pertinent trial evidence by the Ohio Court of Appeals and thus highlight just how extensive and thorough that recapitulation was. In its opinion, the state appellate court summarized the evidence at the petitioner's trial as follows:

According to the state's evidence, on or about August 14, 2001, LaToya Dixon, who was 16 years old at the time, paged Dennis Michael Williams, aka " Mikey," and invited him to her apartment. At that time, Dixon lived in apartment 2F at 4611 Refugee Road, Columbus, Ohio, in an apartment complex that was then called the Beacon Hill Apartments.

Within about an hour, Williams, who was accompanied by male friends whom Williams later introduced to Dixon as " cousins" and with whom Dixon was unfamiliar, arrived at Dixon's apartment complex in two cars. Dixon met Williams and his companions in the parking lot of the apartment complex, and Dixon escorted Williams and his companions to her apartment. At trial, Dixon could not recall Williams'[s] companions' names.

One of Williams'[s] companions asked Dixon if he could use her telephone. Dixon agreed. However, when the telephone apparently did not work, Williams'[s] companion attempted to break the telephone. Although Williams attempted to calm Dixon, Dixon became concerned and asked Williams'[s] companion why he was attempting to break her telephone.

Dixon, who was now concerned about her safety, then went across the hall to the apartment of a neighbor, Emmitt Grant, and asked for a " Black & Mild" cigar. According to Dixon, Grant was aware that Dixon did not smoke and by asking for the cigar Dixon had hoped " to let [Emmitt Grant] know that I felt like something was about to happen in my house." While Dixon was talking with Grant, some of the individuals that Dixon had allowed into her apartment observed Dixon through the peephole.

After talking with Grant, Dixon returned to her apartment. Upon returning to her apartment, Dixon and Williams went into the bathroom to talk. The men that accompanied Williams remained in Dixon's living room. At some point, Williams'[s] companions left Dixon's apartment.

Dixon and Williams then retired to Dixon's bedroom to have sex. However, Dixon ultimately decided against having sex with Williams and left the apartment. As she exited the apartment, Dixon passed Williams'[s] companions, who were entering Dixon's apartment.

After exiting her apartment, Dixon went by the apartment complex's pool and came upon Jerramie Hill and John Hill, who inquired of Dixon what was happening. Dixon told the Hill brothers that she was waiting for Williams and his companions to leave her apartment and " [t]hey were acting crazy." Dixon also told the Hill brothers that they should not intervene.

Dixon then began walking with the Hill brothers. At some point, Williams and his companions jumped out from an entryway, surrounded the Hill brothers, and attacked them.

Dixon then ran to her apartment to change her clothes, " [b]ecause I didn't have-really have no clothes on. I had like a dress on. I didn't have no shoes or nothing on * * *." She later peered through a broken window into the Hill

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brothers' apartment. Dixon observed a man with many compact discs in his hand. She recognized this man as one of Williams'[s] companions. The apartment was in disarray and there was blood on the walls. Dixon also observed someone being beaten in the bathroom. She also heard screams and stomping sounds from the apartment. Dixon also recognized Williams'[s] voice coming from the Hill brothers' apartment. She did not hear any gunshots, nor did she observe anyone being hit with a commercial blower that purportedly was in the Hill brothers' apartment.

Fearing for her own safety, Dixon fled to a friend's house. The next day she contacted police.

According to Emmitt Grant, who lived in apartment 2E across from Dixon's apartment, after a female friend with whom Grant had spent the evening left his apartment between 1 and 1:30 a.m. on August 14, 2001, Grant remained in his apartment and played video games. Because the weather was pleasant, he left the door to his apartment open.

According to Grant, at approximately 2 a.m. on August 14, 2001, he observed Dixon leave her apartment. Approximately five minutes later, Dixon returned to her apartment and was accompanied by some black males. Approximately five minutes later, Grant observed two men exit Dixon's apartment and go down the stairs. After a couple of minutes, these men returned to Dixon's apartment. Grant also heard one man, upon exiting Dixon's apartment scream, " Fuck, that. Who is he? Who is he?"

At some point, Grant closed the door to his apartment. As he retreated to his seat, there was a knock at his door. Dixon was at the door and asked Grant for a cigar. She did not appear to be upset. Dixon returned to her apartment and, as she opened the door to her apartment, Grant observed several men in Dixon's apartment.

As Grant turned to return to his apartment, one of the men greeted Grant. Grant returned the greeting, entered his apartment, and closed the door. Later, however, because Grant felt that he should not have to close his door, he reopened the door to his apartment and left it halfway open.

A few minutes after Grant reopened his door, a man stood in the doorway to his apartment with his back toward Grant. The man looked over his shoulder and inquired as to what Grant was doing. Grant replied that he was playing a Dreamcast game.

As the man stood at the doorway, another man entered Grant's apartment without invitation from Grant and stood in front of a table by the couch. Next, the man who had been standing in the doorway entered Grant's apartment also without invitation and swung at Grant. A fight ensued. Two other men entered Grant's apartment and attacked Grant. During the fight, Grant saw a person run toward the back of his apartment. This same person slammed Grant's entertainment center to the floor.

During the fight, Grant observed a gun fall from the hip of the person that had first swung at him. Grant then heard others in the background scream, " Get your gun, get your gun. * * * He's about to get your gun." Grant's hand was then kicked away from the gun that had hit the floor. A cable cord from Grant's videocassette recorder (" VCR" ) was wrapped around Grant's neck, and later an attacker hit Grant's head with a little table. After being struck three times in the head with the table, Grant fell to the floor. The man

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that had wrapped the cord around Grant's neck then said, " Fuck it. Let's drag his ass to the back." In court, Grant could not identify defendant as one of the men who had been in his apartment.

At some point, Grant escaped from his attackers. Grant ran across the apartment complex to an apartment that was illuminated. An elderly resident came to the door. Grant asked the resident to call Grant's family or friends. Instead, the resident called 911.

Officers Patrick Seaman and Aaron Dennis of the Columbus Division of Police responded to the location where the 911 call was placed by the elderly resident. Earlier police had also received another call from the resident in the apartment below Grant's apartment concerning a commotion or fight in Grant's apartment. After viewing...

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