Baskerville v. Sheldon

• Docket Number: 5:18CV2277
• Decision Date: 30 October 2019
• Parties: DEANDRE BASKERVILLE, Petitioner, v. ED SHELDON, Warden Respondent.
• Court: U.S. District Court — Northern District of Ohio

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DEANDRE BASKERVILLE, Petitioner, v. ED SHELDON, Warden Respondent.

No. 5:18CV2277

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

October 30, 2019

JOHN R. ADAMS JUDGE

REPORT & RECOMMENDATION

Jonathan D. Greenberg United States Magistrate Judge

Table of Contents

I. Summary of Facts ........................................................ 2

II. Procedural History ....................................................... 3

A. Trial Court Proceedings ............................................. 3

B. Direct Appeal ..................................................... 4

C. Application to Reopen Appeal under Ohio App. R. 26(B) ................... 6

D. Post-Conviction Filings ............................................. 7

E. Federal Habeas Petition ............................................. 9

III. Exhaustion and Procedural Default ......................................... 15

A. Legal Standard ................................................... 15

B. Application to Petitioner ............................................ 18

1. Ground Four, Five (supporting facts A and C), Six, and Seven ........ 19

a. Cause and Prejudice ................................... 21

b. Actual Innocence ..................................... 24 2. Ground One ................................................ 25

IV. Non-cognizable Claims ................................................... 30

A. Ground One ...................................................... 31

B. Ground Two ..................................................... 34

C. Ground Three .................................................... 38

V. Review on the Merits .................................................... 40

A. Legal Standard ................................................... 40

1. Grounds Three and Eight ..................................... 42

2. Ground Five (Supporting Fact B) ............................... 54

VI. Conclusion ............................................................ 60

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Deandre Baskerville (“Baskerville” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Baskerville is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case of State v. Baskerville, Summit County Court of Common Pleas Case No. CR2015-10-3270. For the following reasons, the undersigned recommends that the Petition be DENIED.

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Baskerville's conviction as follows:

{¶ 2} On an evening in August 2015, Mr. Baskerville went to the mall with his cousin. While there, he saw an acquaintance, the victim in this matter, and approached him. According to Mr. Baskerville, the victim owed him money and he wanted to speak with the victim regarding their business arrangement. There is no dispute that, while the two spoke, an argument developed, and the victim became increasingly upset. Eventually, the two walked out of the mall together as they continued to argue. The argument ended when Mr. Baskerville removed a knife from his pocket and stabbed the victim once in the side of the neck. The victim then stumbled back into the mall where he died shortly thereafter. According to Mr. Baskerville, he stabbed the victim in self-defense. He admitted, however, that he ran from the scene, disposed of his knife, sanitized his car, burned the clothes he was wearing, and left Ohio. The police apprehended Mr. Baskerville in West Virginia the following month.

{¶ 3} A grand jury indicted Mr. Baskerville on two counts of murder and one count of aggravated murder, felonious assault, and carrying a concealed weapon. The matter proceeded to a jury trial, at the conclusion of which the jury found Mr. Baskerville not guilty of aggravated murder, but guilty of his remaining charges. The trial court sentenced him to fifteen years to life in prison.

State v. Baskerville, 91 N.E.3d 340, 2017-Ohio-4050 (Ohio App. 9th Dist. May 31, 2017).

II. Procedural History

A. Trial Court Proceedings

In October 2015, a Summit County Grand Jury issued an indictment charging Baskerville with one count of aggravated murder (Count One); two counts of murder in violation of Ohio Rev. Code §§ 2903.02(A) and (B) (Counts Two and Three); one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1)/(A)(2) (Count Four); and one count of carrying a concealed weapon in violation of Ohio Rev. Code § 2923.12(A)(1). See Doc. No. 16-1, Ex. 2, 20; State v. Baskerville, 91 N.E.3d 340, 2017-Ohio-4050, at ¶3. Baskerville pled not guilty. (Doc. No. 16-1, Ex. 2.)

The case proceeded to jury trial on February 1, 2016. (Doc. No. 16-2.) On February 5, 2016, the jury found Baskerville guilty of both murder charges, felonious assault, and carrying a concealed weapon, but not guilty of aggravated murder. (Doc. No. 16-1, Ex. 4, 5.)

On February 16, 2016, the state trial court held a sentencing hearing. (Doc. No. 16-1, Ex. 5; Doc. No. 16-10.) The trial court merged the murder and felonious assault charges and the State elected to proceed on the murder charge set forth in Count Two of the indictment. (Doc. No. 16-1, Ex. 5.) Baskerville was sentenced to fifteen years to life on the murder charge and six months imprisonment on the carrying a concealed weapon charge, with both sentences to be served concurrently for an aggregate prison term of fifteen years to life. (Id.)

B. Direct Appeal

On March 1, 2016, Baskerville, through counsel, filed a Notice of Appeal to the Ninth District Court of Appeals of Ohio (the “state appellate court”). (Doc. No. 16-1, Ex. 6.) In his appellate brief, he raised the following grounds for relief:

I. The trial court erred in allowing introduction of evidence of other crimes, wrongs or acts to show Mr. Baskerville's character in violation of the Rules of Evidence denying Mr. Baskerville due process and equal protection of law under both the U.S. Constitution and the Ohio Constitution.

II. The trial court erred when it charged the jury with a confusing and misleading self-defense instruction.

III. The prosecutor's conduct throughout the trial rose to the level of prosecutorial misconduct and deprived Mr. Baskerville of his right to due process of law and a fair trial in violation of his 5^th, 6^th and 14^th amendment rights under the U.S. Constitution and Article I, section 10 of the Ohio Constitution.

IV. The trial court erred in admitting into evidence inflammatory, cumulative, and gruesome photographs in violation of Mr. Baskerville's rights to a fair trial as protected by the 5^th, 6^th, and 14^th Amendments to the United States Constitution and Article I, section 10 of the Ohio Constitution.

V. The trial court erred in allowing prosecutor to continually refer to an inadmissible video and to use the video and information therein for impeachment of the state's own witness.

VI. The trial court erred in not instructing the jury on the lesser included offenses of involuntary manslaughter, voluntary manslaughter, and aggravated assault as required under the law.

VII. Mr. Baskerville's murder and felonious assault convictions were against the manifest weight of the evidence and as a result his rights under the 14^thAmendment to the U.S. Constitution and Article 1, Section 16 of the Ohio Constitution were violated requiring his conviction on those counts be vacated.

VIII. Mr. Baskerville's rights pursuant to the 6^th and 14^th Amendments to the United States Constitution were violated due to ineffective assistance of counsel.

(Doc. No. 16-1, Ex. 7.) The State filed a Brief in Opposition, to which Baskerville replied. (Doc. No. 16-1, Ex. 8, 9.)

On May 31, 2017, the state appellate court affirmed Baskerville's convictions and sentences. (Doc. No. 16-1, Ex. 10.) See also State v. Baskerville, 91 N.E.3d 340, 2017-Ohio-4050.

On July 10, 2017, Baskerville filed a pro se notice of appeal to the Supreme Court of Ohio. (Doc. No. 16-1, Ex. 11.) In his memorandum in support of jurisdiction, Baskerville raised the following propositions of law:

I. It is error for the trial court to allow introduction of evidence of other crimes, wrongs or acts to show Mr Baskerville's character in violation of the Rules of Evidence denying Mr. Baskerville due process and equal protection of law under both the U.S. Constitution and the Ohio Constitution.

II. It is error for the trial court to charge the jury with a confusing and misleading self-defense instruction.

III. The prosecutor's conduct throughout the trial rose to the level of prosecutorial misconduct and deprived Mr. Baskerville of his right to due process of law and a fair trial in violation of his 5th, 6th and 14th Amendment rights under the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.

IV. It is error for the trial court to admit into evidence inflammatory, cumulative and gruesome photographs in violation of Mr. Baskerville's rights to a fair trial as protected by the 5th, 6th and 14th Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

V. It is error for the trial court to allow a prosecutor to continually refer to an inadmissible video and to use the video and information therein for impeachment of the State's own witness.

VI. It is error for the trial

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