ORDER
JAMES G. CARR, Senior District Judge.
This is a capital habeas corpus case under 28 U.S.C. § 2254.
In 2000, a jury in the Common Pleas Court of Cuyahoga County, Ohio, convicted the petitioner, Quisi Bryan, of the aggravated murder of Wayne Leon, an Officer of the Cleveland Police Department. The jury recommended that Bryan receive a death sentence, and the trial court adopted the recommendation and sentenced Bryan to death.
Bryan now seeks habeas relief on sixteen grounds.
For the following reasons, I grant the petition on Bryan's claim that the prosecution violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using a peremptory strike to remove an African–American from the venire. The State of Ohio must therefore release Bryan from custody unless, within 120 days of the entry of this order, it elects to retry him.
In August, 2000, the Cuyahoga County grand jury indicted Bryan on three counts of aggravated murder, two counts of attempted murder, and multiple counts of firearms-related offenses.
Each aggravated-murder count carried four death-penalty specifications that, if proved, would make Bryan eligible for a death sentence.
The specifications alleged Bryan had killed Officer Leon: 1) while Leon was engaged in his official duties as a police officer, see O.R.C. § 2929.04(A)(6) ; 2) with the specific purpose to kill a police officer, see id.; 3) to escape detection, apprehension, trial, or punishment for another offense, see O.R.C. § 2929.04(A)(3) ; and 4) as part of a "course of conduct" in which Bryan had killed or attempted to kill two or more people, see O.R.C. § 2929.04(A)(5).
With the assistance of two lawyers qualified to handle capital cases, Bryan went to trial on these charges in October, 2000, less than three months after Officer Leon's murder. According to the Ohio Supreme Court, whose factual determinations are presumptively correct on habeas review, 28 U.S.C. § 2254(e)(1), the prosecution's evidence showed that:
Early in 2000, Quisi Bryan, who was at the time married, began living together with Janie Winston, his 18–year–old girlfriend, at her Cleveland residence. Bryan supported himself by selling drugs and "hitting licks," i.e., robbing other drug dealers. He owned a revolver, carried a Glock .45 caliber semiautomatic handgun, and at all times, kept a shotgun hidden inside Winston's mattress. At that time, he told Winston that his parole officer was looking for him because he "had got caught up with writing his name on some cashier's checks and—or traveler's checks." He told Winston, though, "I'm going to go in under my own terms." In fact, Bryan had been indicted for theft and receiving stolen property, and arrest warrants had been issued alleging him to be a parole violator.
Around 11:00 or 11:30 p.m. on Saturday, June 24, 2000, Bryan told Winston that he was leaving the house to "hit a lick." She did not hear from him again until late the next morning.
Around 11:00 a.m., on Sunday, June 25, 2000, while alone on routine patrol in his police cruiser, Officer Wayne Leon apparently noticed irregularities on the temporary license tag on Bryan's Pontiac Grand Prix. Leon followed Bryan's car as it stopped at a Sunoco service station located at the corner of East 40th Street and Community College Avenue.
Officer Leon and Bryan both exited their vehicles after stopping. Leon first inspected Bryan's temporary tag and noticed that it had been altered. He then obtained Bryan's driver's license to run a police check on him and on the vehicle.
Officer Leon and Bryan stood next to the cruiser as Leon called the station using his police radio transmitter on his right shoulder. Leon's right hand was on the radio transmitter and his left hand was holding Bryan's driver's license. As Leon turned his head to talk over the radio, Bryan pulled his Glock handgun from his coat and shot Leon in the face. As Leon lay on the ground, Bryan retrieved his driver's license, returned to his car, and sped away. Officer Leon died from that gunshot.
While waiting at a traffic light next to the Sunoco station, Kenneth Niedhammer heard the gunshot and saw a police officer lying on the pavement. Niedhammer then saw a white Pontiac Grand Prix drive erratically from the Sunoco station. Niedhammer, who was driving a private security vehicle, pursued the Grand Prix. While in pursuit, Niedhammer activated the security vehicle's siren and flashing lights.
On East 39th Street, Bryan stopped behind a vehicle driven by Cad Holly Matthews, who was waiting at a stop sign. Bryan exited his Grand Prix and started shooting at Niedhammer. One of Bryan's shots hit a spotlight on Niedhammer's vehicle, which was only six to eight inches from Niedhammer's head. A ricochet from another shot bruised Niedhammer's forearm. One of Bryan's shots also struck an upstairs bedroom window in Matthews's nearby home near where Matthews's granddaughter, her fiancé, and their eight-month-old son were sleeping. Niedhammer stopped, exited his vehicle, and returned fire.
Following the exchange, Bryan sped away with Niedhammer in pursuit. After a few more blocks, Bryan stopped again, got out of his car, and again fired at Niedhammer. Niedhammer stopped his vehicle behind Bryan's car and fired two or three shots at Bryan. After a minute or so, Bryan returned to his car and drove away with Niedhammer in pursuit.
Bryan eventually lost control of his vehicle and collided with several parked cars and a church van. Although dazed by the crash, Bryan grabbed his backpack and gun and ran away.
After running a short distance from the crash scene, Bryan approached a group of men and asked whether he "could pay somebody to drop him off because guys was after him." For $30, Barry Philpot drove Bryan to a designated location and dropped him off. Bryan threw his Glock handgun into a nearby dumpster, went to his wife Elaine Bryan's home, and fled in her blue Dodge Spirit.
Bryan then called Winston, told her "that something happened" and that she should pack some clothes." He met Winston at a supermarket, and they drove to his father's home. Bryan obtained a handgun from his father's house and put it under the car seat. Bryan and Winston then drove to Columbus.
While driving to Columbus, Bryan told Winston, "I hope he don't die. * * * I shot a police officer in the face." Bryan explained that a police officer had stopped him, "they exchanged words, and [Bryan] pulled out his gun, put it to his head * * * and [as] the officer was reaching for his [gun] * * * [Bryan] shot him." Bryan also said, "I just can't go back under their terms. I'm going to go under mine. * * * [I]f this man dies, I will never see the day of light again or I will just get life in prison. Janie, I just can't go back."
In Columbus, Bryan drove to an ex-girlfriend's house and tried unsuccessfully to buy some crack cocaine. He then told Winston, "Well, we going to catch a train to Pennsylvania. Then from Pennsylvania we going to fly to Florida. Then from there we going to try to leave the country."
While looking for a Columbus hotel, Bryan offered a stranger, Gerald Alfred, money to rent a hotel room for them. During the late afternoon on June 25, Bryan and Winston went into the hotel room with Bryan's backpack, which contained .45 caliber and .357 magnum cartridges, parts of a shotgun, two shotgun rounds, and gun-cleaning equipment.
Winston placed the handgun that Bryan had obtained from his father's house underneath the bed in the hotel room.
Bryan told Winston that Alfred was going to help him look for some crack. Bryan left the room and told Winston that he would be "right back." When Bryan did not return, Alfred drove Winston to the Greyhound station so that she could return to Cleveland. She put the handgun into Bryan's backpack and took it with her.
By the time Bryan and Winston had arrived in Columbus, Cleveland police had already identified him as the main suspect in Leon's shooting by tracing the Pontiac's temporary license tag. From Elaine Bryan, they obtained a description of the Dodge Spirit that Bryan was driving, and they broadcast a description of Bryan and the Dodge Spirit to police departments throughout Ohio and surrounding states.
Later that same day, Columbus Police Sergeant Tyrone Hollis spotted the Dodge Spirit, stopped his cruiser behind it, and arrested Bryan. As Bryan was being escorted to the police cruiser, he said, "I didn't shoot the cop. I was there." When he was in the cruiser, Bryan also blurted out, "I didn't pull the trigger."
Police later learned that Alfred had rented a hotel room for Bryan and a young lady. After police located Alfred, he described Winston and said that she was at the Greyhound station. Police then arrested Winston and seized Bryan's backpack.
Around 3:00 a.m. on June 26, Cleveland Police Detective Michael O'Malley attempted to interview Bryan in Columbus. As Bryan was brought to the roll-call room, he said, "You probably think I'm some kind of animal." After O'Malley advised Bryan of his Miranda rights, Bryan said that he did not wish to talk about the incident. However, Bryan did say, "I feel sorry for the officer and things aren't like they seem."
Following Officer Leon's murder, police investigators showed eyewitnesses a photo array to identify Leon's assailant. Neither Geneva Marie Jefferson, who had witnessed the shooting at the Sunoco station, nor Niedhammer was able to identify Bryan from a photo array. Similarly, neither George Abou–Nader nor Donnell Wingfield
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