Petitioner, an inmate in state custody at the Marion Correctional Institution in Marion, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent's return of writ, and petitioner's reply. (Docs. 1, 5, 6).
The Ohio Court of Appeals, Twelfth Appellate District set forth the following summary of the facts that led to petitioner's conviction and sentence:
On the evening of August 13, 1996, appellant contacted the private security staff at Lake Waynoka, the private gated community where appellant lived. Appellant stated that he needed help, claiming that his wife "Linda has shot herself again." Appellant then called 911. Officer Doug Henize, a ranger from the Lake Waynoka staff, was first on the scene. Officer Henize observed Linda Curtis in bed and bleeding from the side of her head. He noted that her bedroom was quite cold from the air conditioning unit. He determined that she had been shot in the left temple. She was positioned on her back with her legs pulled up to her body and her knees in the air. Henize testified that she was covered by a blanket which was tucked around her so her hands were not visible. No weapon was found near the body. He noted a pillow with a bullet hole in it "laying along side the bed." The pillow, which matched the bed linens from appellant's separate bedroom, had blast damage consistent with a firearm being held in direct contact with the pillow at the time of discharge. Henize left the bedroom, secured the residence, and awaited the arrival of officers from the Brown County Sheriff's Office ("BCSO").
Soon after, the life squad, officers from the BCSO, and coroner arrived at the scene. The BCSO conducted a search of the scene and found no signs of forcedentry or burglary. A search of the house produced two shotguns and a rifle, but no handguns.
The coroner found that death was due to a contact range gunshot wound to the head. Because no weapon was found, the manner of death was listed as "undetermined." The coroner concluded the time of death as "morning." The Montgomery County Coroner's Office performed the forensic autopsy for Brown County, finding that the time of death to be "late morning to early afternoon." Subsequent lab analysis indicated no gunshot residue on Linda's hands or feet. The bullet fragment recovered from Linda's head was identified as a ".38 Special .357 Magnum caliber, hollow-point design, a nylon-coated lead."
The lead investigator from the BCSO and the coroner interviewed appellant on the night of Linda's death to gather information regarding the manner and time of death. Appellant stated that he had gone to bed a little before midnight in his bedroom, which was across the hall from Linda's room. He told the coroner that he had been awakened briefly around 3:30 a.m. by what sounded like Linda arguing on the phone with someone. When he left for work that morning at 7:30 a.m., Linda's bedroom door was closed and he did not look in on her. Before going to work, appellant went to his mother's home in New Vienna, about an hour away. Appellant saw his brother and family shortly after 9:00 a.m. outside a bank in New Vienna, inquiring as to where his mother was. He then went to work. Appellant arrived home from work shortly after 7:30 p.m. He brought in groceries he had purchased and called for Linda. After hearing no response, he found her in bed. Appellant told the coroner that, because Linda had attempted suicide four months earlier by shooting herself twice in the stomach, he believed she had killed herself. Appellant denied ever seeing a gun. No arrests were made.
The investigation was re-opened in 2001. The coroner filed an amended death certificate indicating the manner of death as "homicide" after receiving information that there had been no gunshot residue on Linda's hands. Once again, no arrests were made.
In 2008, the BCSO re-opened the investigation, reviewing prior reports, retesting some items, checking the background of appellant, and interviewing about 50 individuals about the case. The coroner was asked to try to narrow the time of death. Noting that Linda's bedroom was very cool, combined with the fact that the body was in full rigor at the time he conducted the examination, the coroner estimated that death had occurred between 2:00 a.m. and 8:00 a.m. on August 13, 1996.
During the course of the investigation, the BCSO discovered that appellant had numerous civil judgments against him in the year before Linda's death. Appellant was listed as the beneficiary on Linda's life insurance policy, although she had made efforts to change the designation to her children before she died. Linda'schildren and others reported that Linda feared appellant would kill her. She had filed a domestic violence complaint against appellant in 1995, but dismissed it. The BCSO also received information that appellant had owned a Smith & Wesson .357 that was capable of firing a .38 round. The other potential suspect, Ruth Hunter, Linda's alleged lesbian lover, had died in the interim.
BCSO Detective Carl Smith and Chief Deputy John Schadle traveled to Florida in November 2008 to interview appellant at his home. Appellant was cooperative and spoke with them for 56 minutes, but maintained his innocence. Based upon the BCSO investigation, appellant was arrested in Marion County, Florida.
While waiting in the intake area of the Marion County jail, appellant allegedly struck up a conversation with Gerald Payne, an inmate at the jail awaiting an evidentiary hearing on the appeal of his 2007 sentence for burglary, kidnapping, and aggravated assault with a deadly weapon. Payne notified jail officers that he had information about appellant's case. According to Payne, appellant told him of his marriage to Linda; that she had been in an accident and was addicted to medication; she tried to kill herself twice before; she suffered from depression; one of her friends had died shortly before her death; and that he was tired of taking care of her and wanted away from her. Appellant allegedly told Payne that "he had disposed of the gun and no one would find it." Payne asked appellant if he relieved Linda of her suffering. Payne admitted that appellant did not outright confess to killing Linda, but hung his head down and shook his head in the affirmative.
(Doc. 5, Ex. 14, pp. 1-4).
On March 5, 2009, the Brown County, Ohio grand jury returned a two-count indictment charging petitioner with aggravated murder and murder. (Doc. 5, Ex. 1). Both counts included a firearm specification. Id. On March 24, 2009, petitioner entered a not guilty plea to the charges in the indictment. (Doc. 5, Ex. 2).
On June 5, 2009, petitioner, through counsel, filed a motion to dismiss the indictment based on the delay between the alleged offenses and the indictment. (Doc. 5, Ex. 3). The trial court overruled petitioner's motion on July 14, 2009. (Doc. 5, Ex. 7).
On September 25, 2009, following a jury trial, petitioner was found guilty of all charges. (See Doc. 5, Ex. 9). Petitioner was sentenced to a term of life imprisonment with parole eligibility after serving twenty years of imprisonment for his aggravated murder conviction and a consecutive term of imprisonment of three years for the gun specification. (Doc. 5, Ex. 10). The murder conviction was merged with the aggravated murder conviction for the purposes of sentencing. Id.
On October 1, 2009, petitioner, through his trial counsel, filed a timely notice of appeal to the Ohio Court of Appeals. (Doc. 5, Ex. 11). Petitioner was subsequently appointed new appellate counsel, who filed a merits brief on petitioner's behalf on June 28, 2010. (See Doc. 5, Ex. 12). Therein, petitioner presented the following assignment of error for the court's consideration:
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT DENIED HIS MOTION FOR ACQUITTAL BECAUSE THE EVIDENCE AGAINST HIM WAS INSUFFICIENT TO SUPPORT A CONVICTION, THEREBY DENYING HIM HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE ONE OF THE OHIO CONSTITUTION.
Issue Presented for review and argument:
Convictions for Aggravated Murder and Murder were improper when they were based on entirely circumstantial evidence or hearsay evidence, from which impermissible inferences were drawn by the jury.
Id. On October 12, 2010, the Ohio Court of Appeals overruled petitioner's assignment of error and affirmed the judgment of the trial court. (Doc. 5, Ex. 13, 14).
Petitioner did not appeal from the Ohio appellate court's decision to the Ohio Supreme Court.
Application to Reopen Direct Appeal On January 10, 2011, with the assistance of the Ohio Public Defender, petitioner filed an application to reopen his direct appeal pursuant to App. R. 26(B). (Doc. 5, Ex. 15). In his memorandum in support of reopening his appeal, petitioner argued that his appellate counsel was ineffective for failing to raise the following two assignments of error:
1. The trial court erred when it overruled Richard Curtis' motion to dismiss on the basis of delayed indictment.
2. Mr. Curtis was provided ineffective assistance of counsel when trial counsel failed to object to prejudicial hearsay.
Id. On March 2, 2011, the Ohio Court of Appeals denied petitioner's application. (Doc. 5, Ex. 17).
On April 18, 2011, petitioner, through counsel, appealed to the Ohio Supreme Court from the Ohio Court of Appeals' decision denying his application to reopen. (Doc. 5, Ex. 18). In his memorandum in support of jurisdiction, petitioner raised the...
