Benge v. Johnson, No. C-1-98-861.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtSargus
PartiesMichael W. BENGE, Petitioner, v. David JOHNSON, Warden, Respondent.
Decision Date31 March 2004
Docket NumberNo. C-1-98-861.

Page 978

312 F.Supp.2d 978
Michael W. BENGE, Petitioner,
v.
David JOHNSON, Warden, Respondent.
No. C-1-98-861.
United States District Court, S.D. Ohio, Eastern Division.
March 31, 2004.

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David Bodiker, Ohio Public Defender's Office — 2, Kyle Edward Timken, Ohio Public Defender's Office — 2, Stephen A Ferrell, Ohio Public Defender's Office — 2, Columbus, OH, for Petitioner.

Henry G Appel, Ohio Attorney General — 2, Capital Crimes Section, Columbus, OH, Matthew J Lampke, Ohio Attorney General — 2, Employment Law Section, Columbus, OH, Stuart Alan Cole, Ohio Attorney General, Corrections Litigation Section, Columbus, OH, Thomas F Martello, Jr, Kevin O'Brien & Associates — 2, Columbus, OH, for Respondent.

OPINION AND ORDER

SARGUS, District Judge.


Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the habeas corpus petition, (doc.no.14), respondent's return of writ, (doc.no.18), and petitioner's traverse, (doc.no.47). Also before the Court is the original joint appendix, which consists of ten volumes.

The facts and procedural history of this case were set forth by the Supreme Court of Ohio in State v. Benge, 75 Ohio St.3d 136, 661 N.E.2d 1019 (1996):

In the early morning hours of February 1, 1993, a car belonging to Judith Gabbard, defendant-appellant Michael W. Benge's live-in girlfriend, was found abandoned on the west side of the Miami River in Hamilton, Ohio. The vehicle was found near the river with the front passenger-side tire stuck in a gully. After the vehicle was towed to the impound lot, the tow-truck operator observed blood on the front bumper and passenger side of the car and notified police.

The police returned to the area where the car was found and discovered the body of Judith Gabbard in the Miami River. Her body had been weighed down with a thirty-five pound piece of concrete which had been placed upon her head and chest. One of the pockets on the jacket Gabbard was wearing was empty and turned inside out. She still had in her possession her checkbook, cash and jewelry. The police retrieved a tire iron, or lug wrench, from the river approximately twelve to fifteen feet from where Gabbard's body was found. A jack and spare tire were found in Gabbard's trunk, but no lug wrench was discovered. Police removed lug nuts from the vehicle, which were sent to a laboratory and compared with the lug wrench. Although no positive match was made, the lug nuts did bear markings which were similar to the lug wrench.

The police gathered other physical evidence from the scene which was also tested by a forensic laboratory. Strands of hair and type A blood (which both

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Gabbard and appellant had) were found on the driver's side front tire. Smears of blood were also discovered above the passenger-side headlight and on the fender. Police also found a pool of blood with a tire track through it and blood contained in the tire treads. According to one of the investigative detectives, this evidence indicated that the car had been driven through the blood and through the hair of the victim.

An autopsy was performed, which revealed that the victim had suffered a number of blows to the head with a long blunt object which produced pattern abrasions and multiple skull fractures, one of which was circular in nature. According to the coroner, the victim died of brain injuries secondary to multiple skull fractures which were inflicted with a blunt object.

The police apprehended Benge the next day, on February 2, 1993. When the detectives approached Benge, on the street, they observed him drop Judith Gabbard's ATM card to the ground. They picked up the card, arrested Benge, and took him into the station for questioning. After being read his Miranda warnings, Benge agreed to talk to the detectives. Benge told police that two black men in a Bronco had chased him and Gabbard to the river and that their car had gotten stuck. Benge claimed that one of the men injured Gabbard and took her ATM card while the other held him at gunpoint, demanding the ATM code word. When Benge refused to tell him, the man returned the ATM card to him. Benge escaped by jumping into the river. As he swam away, he heard Gabbard screaming as the men beat her. The detectives told Benge they did not believe his story. Benge told them he thought he should talk to a lawyer. The questioning ceased at that point.

A short time later, Benge told police he was willing to talk. Benge signed a Miranda warning card indicating that he waived his Miranda rights. Benge then gave the police a tape-recorded statement in which he recounted a different version of what happened the night before. Benge told police that he had driven to the riverbank with Gabbard so that they could talk. He said that they had argued over the fact that he was addicted to crack cocaine. Gabbard also accused him of being unfaithful to her. Benge then said he got out of the vehicle to urinate. At that point, he said Gabbard tried to run him down, but the car got stuck in the mud. Benge said that he became enraged, pulled Gabbard out of the car, and began beating her with a metal pipe he found lying on the ground. Benge said he threw her body into the river, face down, disposed of the weapon and swam across the river. He did not recall whether he put any rocks or cement on her body. Benge then went to the home of his friend, John Fuller, to get dry clothes, which Fuller's fiancee, Awantha Shields, provided.

During this second interrogation, Benge was questioned about the ATM card, why he had dropped it when he saw the police, and whether he had used it after killing Gabbard. Benge said he threw down the card because he was scared and he knew he would not need it anymore. He also told police that he had not used the card since he killed Gabbard, although he did allow a man by the name of Baron Carr to use the card once to get money to purchase crack cocaine. Benge claimed that the only reason he had the card in his possession was because he and Gabbard had used it on January 31, 1993 before they went out that evening. However, the police discovered through retrieving ATM records that no transaction had

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taken place on January 31, 1993 and that two transactions were made following Gabbard's death; on February 1, 1993 at 2:45 a.m., a $200 withdrawal was made, and on February 2, 1993 at 12:01 a.m., another $200 was withdrawn.

Benge was indicted on one count of aggravated murder in violation of R.C. 2903.01(B) with death penalty specifications under R.C. 2929.04(A)(3)(offense committed for the purpose of escaping detection for another offense) and R.C. 2929.04(A)(7)(offense committed during the commission of an aggravated robbery) as well as for aggravated robbery and gross abuse of a corpse. Benge pleaded no contest to gross abuse of a corpse. The case proceeded to trial on the other charges.

At trial, the state called Awantha Shields, who testified that in the early morning hours of February 1, 1993, Benge arrived at the house she shared with John Fuller, wearing wet clothes and asking for John. Benge also asked her if she had ever killed anyone. He then told her that he and his girlfriend had "got into it" earlier, that it blew over, and that they went to the river bank. He then told her that they had started fighting and that he hit her in the head no more than ten times with a crowbar, put rocks over her head and pushed her in the river. Benge told her that he had killed his girlfriend to get her "Jeanie" card. He also said that if the police questioned him he would lie and say that a couple of black guys jumped him and his girlfriend and beat his girlfriend up. He also told her that he had given her ATM card to a guy named Baron to get $200 to buy crack cocaine but that he never saw the money.

Larry Carter testified that he and Baron Carr ran into Benge in the early morning of February 1, 1993. Benge, whose clothes were wet, asked Carter to excuse how he smelled but that he had just swum in the river. Carter thought Benge was kidding. Benge told him he had given John $20 to buy crack cocaine for him and said he could get more money. Carter drove Benge and Carr to a Society Bank where Benge withdrew $200 from an ATM; Carter then bought crack cocaine for Benge. Carter later drove Benge to Fuller's house. Later that next night, Carter and Baron Carr withdrew another $200 from Gabbard's account using her ATM card so that they could buy drugs for Benge. However, to avoid giving the drugs or money to Benge, the two men conjured up a story and told Benge that his girlfriend had closed the account. Benge insisted that she had not.

Benge took the stand on his own behalf and reiterated what he had told police during his second interrogation, including that Gabbard had tried to run him down and that he was in a rage when he killed her. Benge also claimed that he had permission to use Gabbard's ATM card and did not rob her. On cross-examination, he admitted losing his job in January 1993 due to his crack cocaine habit and that he had no income at the time he killed Gabbard.

Benge was convicted of all counts and specifications. Thereafter, the jury recommended that he be sentenced to death, and that recommendation was accepted by the trial court. The court of appeals affirmed Benge's convictions and death sentence.

Benge, 75 Ohio St.3d at 136-39, 661 N.E.2d 1019.

Petitioner has raised sixteen claims for relief in this habeas corpus action and many of those claims contain sub-parts. In its Opinion and Order of March 31, 2000, the Court determined that claims one, nine, ten, and fourteen were barred

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by procedural default....

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15 practice notes
  • Jones v. Bradshaw, No. 1:03CV1192.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 21, 2007
    ...of clearly established federal law, but rather conducts a de novo review of the claim. Maples, 340 F.3d at 436-37; Benge v. Johnson, 312 F.Supp.2d 978, 987 (S.D.Ohio 2004).8 If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or ......
  • Johnson v. Bobby, 2:08-cv-55
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • December 28, 2021
    ...questioning Tina Bailey about what it felt like to kill Daniel-context of which the jury was well aware. See, e.g., Benge v. Johnson, 312 F.Supp.2d 978, 1002 (S.D. Ohio 2004), affd, 474 F.3d 236 (6th Cir. 2007) (finding no indication of prejudice to the jury when a family member of the vict......
  • Mammone v. Jenkins, Case No. 5:16CV900
    • United States
    • U.S. District Court — Northern District of Ohio
    • October 9, 2019
    ...E.g., Williams v. Bagley, 380 F.3d 932, 963 (6th Cir. 2004); Coleman v. Mitchell, 268 F.3d 417, 441 (6th Cir. 2001); Benge v. Johnson, 312 F. Supp. 2d 978, 1031 (S.D. Ohio 2004); Jamison v. Collins, 100 F. Supp. 2d 647, 762 (S.D. Ohio 2002);Page 94 Jackson v. Houk, 2008 WL 1946790, *71 (N.D......
  • Whiting v. Burt, No. 03-1894.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 19, 2005
    ...from anything other than joint representation), cert. denied, 540 U.S. 971, 124 S.Ct. 441, 157 L.Ed.2d 319 (2003); Benge v. Johnson, 312 F.Supp.2d 978, 994 (S.D.Ohio 2004)(refusing to apply the Sullivan standard outside the concurrent joint representation Based on Supreme Court and prior Si......
  • Request a trial to view additional results
15 cases
  • Jones v. Bradshaw, No. 1:03CV1192.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 21, 2007
    ...of clearly established federal law, but rather conducts a de novo review of the claim. Maples, 340 F.3d at 436-37; Benge v. Johnson, 312 F.Supp.2d 978, 987 (S.D.Ohio 2004).8 If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or ......
  • Mammone v. Jenkins, Case No. 5:16CV900
    • United States
    • U.S. District Court — Northern District of Ohio
    • October 9, 2019
    ...E.g., Williams v. Bagley, 380 F.3d 932, 963 (6th Cir. 2004); Coleman v. Mitchell, 268 F.3d 417, 441 (6th Cir. 2001); Benge v. Johnson, 312 F. Supp. 2d 978, 1031 (S.D. Ohio 2004); Jamison v. Collins, 100 F. Supp. 2d 647, 762 (S.D. Ohio 2002);Page 94 Jackson v. Houk, 2008 WL 1946790, *71 (N.D......
  • Whiting v. Burt, No. 03-1894.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 19, 2005
    ...from anything other than joint representation), cert. denied, 540 U.S. 971, 124 S.Ct. 441, 157 L.Ed.2d 319 (2003); Benge v. Johnson, 312 F.Supp.2d 978, 994 (S.D.Ohio 2004)(refusing to apply the Sullivan standard outside the concurrent joint representation Based on Supreme Court and prior Si......
  • Montgomery v. Bagley, No. 07-3882.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 29, 2009
    ...of clearly established federal law, but rather conducts a de novo review of the claim. Maples, 340 F.3d at 436-37; Benge v. Johnson, 312 F.Supp.2d 978, 987 (S.D.Ohio While the [Ohio] Court of Appeals addressed this claim, it failed to explain why the fact that the investigation was "ongoing......
  • Request a trial to view additional results

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