Blevins v. May

• Decision Date: 23 June 2022
• Docket Number: 1:20-CV-00023-PAB
• Parties: JEAN BLEVINS, Plaintiff, v. WARDEN HAROLD MAY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

JEAN BLEVINS, Plaintiff, v. WARDEN HAROLD MAY, Defendant.

No. 1:20-CV-00023-PAB

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

June 23, 2022

REPORT & RECOMMENDATION

Jonathan D. Greenberg, United States Magistrate Judge

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Jean Blevins (“Blevins” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Blevins is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Blevins, Cuyahoga County Court of Common Pleas Case No. CR-15-597731-B. 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 Blevins' conviction as follows:

[¶ 3] Jean and his cousin, Barry Blevins (“Barry”), were indicted in a thirteen-count indictment in connection with the October 11, 2014 shooting death of David Garrett (“Garrett”). As is relevant herein, Jean was charged with murder, felonious assault, voluntary manslaughter, involuntary manslaughter and aggravated assault, all with one-and-three-year firearm specifications, and having a weapon while under disability. Barry pled guilty to a single count of voluntary manslaughter with a three-year firearm specification, and was sentenced to fourteen years of imprisonment.1 The case against Jean proceeded to a jury trial.

[¶ 4] The evidence presented by the state of Ohio indicated that Barry and Garrett's family became involved in an ongoing feud since 2006 after Phillip Simpson (“Munchie”) and Barry were charged with drug trafficking, and the Garretts believed that Barry cooperated with police. On the night of the shooting, Garrett and various family members went downtown to the Lavish Ultra Lounge to celebrate a birthday.

[¶ 5] According to the testimony of Garrett's fiancee, Ciara Stewart (“Stewart”), Garrett and Barry became involved in a discussion about Munchie, who was serving time in prison. Stewart asked Garrett to dance with her in order to end his conversation with Barry, but he refused and the discussion became increasingly heated. One of Barry's friends, “Boy George,” also attempted to direct Garrett away, and Garrett's uncles and Barry's friends also came over to the area. At that point, the owner of the Lavish Ultra ordered everyone to leave.

[¶ 6] Stewart went to get her car, but moments later, a huge fight erupted in the parking lot. According to Stewart Barry and Boy George were assaulting Garrett. Garrett broke free and made his way toward Stewart's car, but before he could get in her vehicle, Jean emerged from a nearby vehicle and tossed something to Barry. Immediately after that, Stewart saw Barry aim and fire a weapon at Garrett, killing him, as shots rang out from both sides of the parking lot. As Stewart exited the car to comfort Garrett, she observed Jean return to his vehicle and drive off, while Barry removed his shirt and fled on foot, still holding the gun.

[¶ 7] Stewart identified Jean in a photo array and again in court. She also testified that video of the parking lot depicted her vehicle and some of the events that transpired in the parking lot. Stewart denied that Barry produced the weapon from his waistband, but she acknowledged that her original statement to police said that he had done so.

[¶ 8] Delonda Holiday (“Holiday”) testified that gunshots broke out in the parking lot as she and Stewart went to Stewart's vehicle. Holiday saw Jean, whom she knew prior to the incident, driving a blue car. According to Holiday, Jean got out of a car and gave Barry a gun. There was a hail of gunfire, and Garrett was hit.

[¶ 9] Maurice Thompson (“Thompson”) testified that he knew Barry and Jean prior to the shooting. Thompson stated that he was waiting for friends in the parking lot of Lavish Ultra at the time of the incident. He observed a crowd fighting, then saw Jean separate from the crowd and proceed toward a car parked on Cooley Avenue, an adjacent side street. Thompson next observed Jean “return to the ruckus” a few minutes later. After that, there were gunshots. Thompson admitted that he did not witness Garrett being shot, and he also admitted that he first mentioned hearing the gunshots at the Lavish Ultra Lounge during his prosecution in an unrelated case.

[¶ 10] Angel Ortiz testified that his home is located next to Lavish Ultra, and that he has a video surveillance system. After the shooting, Ortiz found a weapon near his garage and called the police. The police obtained the gun and home security video that captured the events in the parking lot of Lavish Ultra.

[¶ 11] Cleveland Police Detective Todd Clemens (“Det. Clemens”) testified that he found two Federal .40-caliber Smith & Wesson shell casings on the west side of the parking lot. Four .45-caliber shell casings and four 9 mm shell casings were located on the opposite side of the parking lot.

[¶ 12] Dr. Dan Galita (“Dr. Galita”), a forensic pathologist with the Cuyahoga County Medical Examiner's Office, testified that Garrett died from a single gunshot that penetrated the left side of his chest, toward the back, and lacerated his aorta. The bullet traveled from back to front, and left to right.

[¶ 13] Curtiss Jones (“Jones”), a trace evidence analyst with the Cuyahoga County Medical Examiner's Office, testified that he examined various swabs from Garrett's hands and also examined his clothing. According to Jones, there was no gunshot residue on Garrett's body, indicating that Garrett was shot from a distance of at least five feet. Samples from Garrett's hands were also negative for trace metal detection. The back of Garrett's shirt had a bullet hole from the entrance of the bullet. Blood found in other samples was submitted for further DNA analysis.

[¶ 14] Detective James Kooser (“Det. Kooser”), a firearms examiner with the Cuyahoga County Regional Forensic Laboratory, testified that the weapon recovered in this matter was a Heckler & Koch .40-caliber Smith & Wesson pistol with 13 .40-caliber rounds in the magazine. The bullet recovered during Garrett's autopsy was also .40-caliber, and Det. Kooser determined that it was fired from the Heckler & Koch pistol. The two .40- caliber casings found near the west side of the parking lot were also fired from this weapon.

[¶ 15] Carey Baucher (“Baucher”), a DNA analyst with the Regional Forensic Laboratory, testified that in this investigation, she used the “True Allele” software program for analyzing genotypes in order to determine the statistical probabilities for the profiles found in a mixed sample. According to Baucher, this program performs the mathematical analysis not by using “new math,” but by performing more complicated mathematical calculations to deal with mixed samples. Baucher testified that this program had undergone peer review and validation, and was “the best program” for such analyses.2 [Court footnote: The record indicates that in 2017, the state forwarded its DNA analyses to the defense and the defense was granted expert assistance for its own DNA analysis at the state's expense. Later, the defense withdrew a previously filed motion in limine.] According to Baucher, the trigger, muzzle, and magazine of the weapon recovered in this matter contained a mixture of five contributors, and Jean's DNA represented the highest percentage of each the mixture. There was insufficient information to determine if Barry's DNA was on the muzzle and trigger, but his DNA was not on the magazine.

[¶ 16] Barry testified that he had been close friends with Garrett's family. However, after Munchie was arrested for drug possession, the family believed that Barry had served as an informant against him. Over the years, Garrett's family confronted Barry, blaming him for Munchie's imprisonment.

[¶ 17] Barry testified that he saw Garrett at the Lavish Ultra Lounge. As Barry explained that he did not provide information to the police about Munchie, another Garrett relative approached him aggressively. Barry stated that he walked outside to avoid a problem, but the Garrett group followed after him. One family member spat on him, and they began to physically attack him.

Barry's friend, Boy George, tried to pull the attackers off of him, but the fight escalated.

[¶ 18] According to Barry, Garrett pulled a gun and began pistol whipping him. At that point, Boy George grabbed Garrett. Garrett aimed his weapon at Boy George, then Barry ran to his car and got his own weapon, and he and Garrett exchanged gunfire. After that, Barry fled and hid the weapon under a bucket in a nearby backyard.

[¶ 19] Barry testified that he used his own weapon, and that Jean was not present during the shooting. However, Barry stated that Jean had once briefly handled his weapon and the magazine for “a minute or two a couple of days before” the shooting. Barry also testified that, in his first statement to police, he falsely stated that he had obtained the weapon by wrestling it away from one of the Garrett family members during the altercation. Barry stated that he made this false statement because he knew he was prohibited from having a weapon due to his prior drug conviction. Barry also testified that he initially told police that his car had been parked on Cooley Avenue. However, he claimed the car was actually parked in the

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