McDonald v. Warden, Lebanon Correctional Institution, 051012 FED6, 10-3997

Docket Nº:10-3997
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:DEWITT MCDONALD, JR., Petitioner-Appellant, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent-Appellee
Judge Panel:BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge.
Case Date:May 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

DEWITT MCDONALD, JR., Petitioner-Appellant,



No. 10-3997

United States Court of Appeals, Sixth Circuit

May 10, 2012



BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; and THAPAR, District Judge. [*]

GRIFFIN, Circuit Judge.

Petitioner DeWitt McDonald, Jr. was convicted in an Ohio court of various crimes arising out of a drive-by shooting that resulted in the death of Vivian Johnson. Krista Harris's trial testimony implicated McDonald in the shooting. More than six years after McDonald's trial, Harris declared in an affidavit that she had been coerced by the prosecutor into providing false testimony regarding McDonald's whereabouts and conduct the night of the shooting. McDonald sought federal habeas relief based on the affidavit, but the district court concluded that the new claims were time-barred and that he had not made a credible showing of actual innocence that would set aside the bar. We affirm.



The Ohio Court of Appeals summarized the underlying facts as follows:

On the evening of January 5, 1994, [McDonald] and companions Shawn Caston and Daryl Turner were drinking at Whitlee's Bar in Sandusky, Ohio. While at the bar, Caston became involved in an argument with Jerome Caffey. At the conclusion of this dispute, Caffey left Whitlee's and Caston rejoined [McDonald] and Turner. The next morning at approximately 3:00 a.m., Caffey was in the house he shared with Anna Hunt, his aunt. With Caffey was an acquaintance, Sharon McGill. Caffey's aunt also had guests. Tammy Johnson, her sister Vivian Johnson, and Laurie Henry were returning from a graduation party for Vivian's daughter when Tammy and Laurie decided to stop at Anna Hunt's. Tired, Vivian Johnson remained in the car while the other two went inside. As Tammy and Laurie prepared to leave the house, it was sprayed with multiple gun shots.

In the house, a bullet struck Sharon McGill. Another bullet shattered the window of the car in which Vivian Johnson was sitting and struck her in the neck. The bullet which struck Sharon McGill lodged in her abdomen, but she survived. Vivian Johnson died two days later as a result of her wound.

Police investigators searched the scene and found twelve spent nine millimeter shell casings of a type compatible with those used in an Intertech nine millimeter semiautomatic weapon. In an initial interview with police, a neighbor across the street stated that he had heard, but not seen, the shooting. He described hearing a four cylinder car with a loud muffler.

Police attention quickly focused on [McDonald], Caston and Turner. Witnesses described the dispute between Caston and Caffey at Whitlee's Bar. One witness at the bar reported over-hearing a conversation the trio had after the dispute occurred. The witness relayed that [McDonald] told Caston, with reference to Caffey, that "he wouldn't waste his time on one of them. He'd cap one of them." [McDonald], Caston and Turner were also seen together just a few minutes before the shooting in a car at a Shell station a short distance from Caffey's house.

On June 6, 1994, late in the afternoon, police first interviewed [McDonald]. [McDonald] denied making any statement to Caston to "cap" anyone. When asked of his whereabouts at the time of the shooting, [McDonald] said he had spent the night with Daryl Turner at Turner's girlfriend's house. When Turner's girlfriend failed to substantiate this alibi, [McDonald] said he had lied to keep secret an [extramarital] affair he was having with Krista Harris. According to [McDonald], he had spent the night with Harris in a motel.

Harris initially supported [McDonald's] story and went so far as to provide him with an alibi when she testified before a grand jury. Later though, Harris changed her testimony. During [McDonald's] trial, Harris stated that [McDonald] was supposed to meet her in a motel room a few blocks from the shooting scene, but he did not show up until sometime after 3:15 a.m. When he did arrive, according to Harris, he appeared nervous and shaken. Harris also testified that the next morning she overheard a telephone conversation between [McDonald] and Turner in which the shooting was discussed and [McDonald] stated that they "had to get the gun." [McDonald] left and returned with Turner a short time later; Turner was carrying a duffle bag.

[McDonald] and Turner then went to Columbus, Ohio, where they stayed for the next week. In her trial testimony, Harris reported receiving numerous telephone calls from [McDonald] during this period. [McDonald] advised Harris during the phone calls, " *** not to talk to police, [and] that I was going to be his alibi so he wouldn't go to jail *** ." Over [McDonald's] objection, Harris also testified that during one of her telephone conversations with [McDonald] he gave the phone to Turner. Turner, according to Harris, warned her that she was too involved to talk to the police. He also told Harris that he had provided Shawn Caston with the gun, "*** [t]o take Jerome Caffey out, " and that he and [McDonald] then, "*** got rid of it."

During the course of the investigation another witness changed his story. The neighbor from across the street who previously only reported hearing the shooting now admitted he had seen the shooting, but concealed the information from investigators out of fear of becoming involved. The neighbor told police and later testified that he had seen three black males in a compact car with a loud muffler shoot into the Caffey/Hunt house. He also noted that during the shooting he saw one of the occupants of the car pass the gun to a front seat passenger who shot it while holding it over the windshield.

The neighbor's observation of the gun being fired over the windshield became important because when investigators examined the car owned by Shawn Caston's girlfriend, a compact car without a muffler, they found another nine millimeter shell casing lodged in the well between the windshield wiper and the hood. Experts determined that the firing markings on this shell matched those of the twelve casings found at the shooting scene.

In addition to this evidence, Daryl Turner admitted to police that he owned an Intertech nine millimeter pistol, but the weapon was never found.

[McDonald], Turner and Caston were indicted on charges arising out of the drive-by shooting. [McDonald] was indicted on seven counts: aggravated murder, murder, and involuntary manslaughter (all relating to the death of Vivian Johnson), unlawful discharge of a firearm into an inhabited dwelling, felonious assault on Sharon McGill, and attempted aggravated murder and attempted felonious assault (both relating to Jerome Caffey). The charges also contained firearm specifications and injury specifications. [McDonald] plead[ed] not guilty and the matter proceeded to trial. The three men were tried separately.

At trial, the state presented evidence which included testimony concerning the altercation at Whitlee's and [McDonald's] comments relative to Caffey. The neighbor who witnessed the shooting and Krista Harris also testified. At the conclusion of the state's case in chief, the trial court overruled [McDonald's] motion for a judgment of acquittal. [McDonald] presented no defense. On deliberation, the jury found [McDonald] guilty on all counts except the involuntary manslaughter charge. The trial court entered judgment on the verdict and sentenced appellant to life imprisonment.

State v. McDonald, No. E-95-046, 1997 WL 51221, at *1-3 (Ohio Ct. App. Feb. 7, 1997).

The Ohio Court of Appeals affirmed McDonald's convictions, id. at *7, and the Ohio Supreme Court declined discretionary review, State v. McDonald, 679 N.E.2d 309 (Ohio 1997) (table). A federal district court denied habeas relief. We declined to issue a certificate of appealability.

On December 21, 2001, Krista Harris, a key witness for the prosecution, filed an affidavit in the Court of Common Pleas for Erie County, Ohio. The affidavit stated the following in relevant part:

4. In 1994 Affiant at the age of twenty was coerced by threat of false criminal charges including accessory to murder by the Erie County Prosecutor Kevin Baxter into providing false testimony in the trials of State v. Darryl Turner and State v. Dewitt McDonald.

5. In 1994, Affiant was coerced into a non-consensual sexual relationship with the Erie County Prosecutor Kevin Baxter by threat of false criminal charges including being an accessory to murder prior to the trials of paragraph four.

6. In 1995, while under the threat of false criminal charges including perjury, Affiant while engaged in a coerced sexual relationship with the Erie County Prosecutor Kevin Baxter observed Kevin Baxter . . . engage in illegal drug use to wit: cocaine on two occasions at his personal residence . . . .

7. After the trials of paragraph four and while being forced to engage[] in a non-consensual sexual relationship with the Erie County Prosecutor Kevin Baxter, Affiant was ordered to move to Cleveland Ohio by Erie County Prosecutor Kevin Baxter in order to conceal the relationship.

8. In order to facilitate the move . . ., the Erie County Prosecutor Kevin Baxter provided a check to Krista Harris drawn on the Erie County Prosecutor's Furtherance of Justice Fund in order to pay...

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