Dawson-Durgan v. Shoop

• Decision Date: 22 February 2022
• Docket Number: 1:19-cv-382
• Court: U.S. District Court — Southern District of Ohio
• Parties: DONALD DAWSON-DURGAN[1], Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent.

DONALD DAWSON-DURGAN^[1], Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent.

No. 1:19-cv-382

United States District Court, S.D. Ohio, Western Division, Cincinnati

February 22, 2022

Matthew W. McFarland, District Judge

REPORT AND RECOMMENDATION

Michael R. Merz United States Magistrate Judge

This habeas corpus case, brought pro se by Petitioner Donald Dawson-Durgan under 28 U.S.C. §2254, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF No. 1), the State Court Record (ECF Nos 10, 27), the Return of Writ (ECF No. 29) and Petitioner's Traverse (ECF No. 41). Petitioner seeks relief from his conviction in the Court of Common Pleas of Hamilton County on charges of aggravated murder, aggravated robbery, and having weapons while under disability.

Litigation History

On May 19, 2016^[2], the Hamilton County Grand Jury indicted Dawson-Durgan on two counts of aggravated murder in violation of Ohio Rev. Code § 2903.01(A) and (B), aggravated robbery in violation of Ohio Rev. Code § 2911.01(A)(1), all with firearm and repeat violent offender specifications, and having weapons while under a disability in violation of Ohio Rev. Code § 2923.13(A)(2). (Indictment, State Court Record, ECF No. 10, Exhibit 1).

Dawson-Durgan waived trial by jury on the having weapons under disability charge and was convicted. A jury found him guilty of the lesser included offense of murder on count 1, aggravated murder on count 2, guilty of aggravated robbery, and of all of the attached firearm specifications. (Verdicts, ECF No. 10, Exhibit 8). At the request of the State, the court dismissed all of the repeat violent offender specifications. (Entry, ECF No. 10, Exhibit 9). Merging the murder and aggravated murder convictions, the trial court sentenced Dawson-Durgan to life in prison without parole on those charges, eleven years in prison for aggravated robbery, and twelve months in prison for having weapons under disability, all to be served concurrently. Merging the firearms specifications, the court also imposed a mandatory and consecutive three years in prison. (Entry, State Court Record, ECF No. 10, Exhibit 10).

Represented by new counsel, Petitioner appealed to the Ohio Court of Appeals for the First District, raising the following assignments of error:

1. The court erred when it overruled the defense's motion to suppress defendant's statements.

2. The court erred to the prejudice of the appellant by not finding purposeful discrimination by the State against African-Americans during voir dire, and thus violated appellant's rights to due process and equal protection.

3. The trial court erred to the prejudice of the defendant-appellant as there was insufficient evidence to convict.

4. The trial court erred to the prejudice of the defendant-appellant because the verdict was against the manifest weight of the evidence.

5. The defendant was denied effective assistance of trial counsel, as guaranteed by Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments.

(Appellant's Brief, State Court Record, ECF No. 10, Ex. 12). The First District affirmed the conviction. State v. Durgan, 2018-Ohio-2310 (Ohio App. 1^st Dist. Jun. 15, 2018). Raising the same claims as proposed propositions of law, Petitioner appealed pro se to the Supreme Court of Ohio which declined to accept jurisdiction. State v. Durgan, 153 Ohio St.3d 1496 (2018). Petitioner sought unsuccessfully to reopen his direct appeal on claims of ineffective assistance of appellate counsel (Application under Ohio R. App. P. 26(B), State Court Record, ECF No. 10, Ex. 18; Entry, Id. at Ex. 21; appellate jurisdiction declined, Id. at Ex. 24).

On December 7, 2018, Petitioner filed a Petition for Post-Conviction Relief under Ohio Revised Code § 2953.21 (Petition, ECF No. 10, Ex. 27), which the trial court summarily denied. Id. at Ex. 28. The First District affirmed for lack of jurisdiction based on untimeliness. State v. Dawson-Durgan, 2020 Ohio App. LEXIS 1055 1^st Dist. Mar. 25, 2020)^[3]. Petitioner did not timely appeal, but later filed an unsuccessful mandamus action to compel the Clerk of the Supreme Court of Ohio to accept his motion for delayed appeal. Petitioner filed his Petition for Writ of Habeas Corpus in this Court on May 18, 2019, by depositing it in the prison mail system. He pleads the following grounds for relief:

Ground One: The court erred when it overruled the defense's motion to suppress defendant's statements.

Supporting Facts: Defendant's constitutional rights were violated when during custodial interrogation by police when his rights were not appraised [sic] by those officers in accordance with his constitutional protections.

Ground Two: The defendant was denied effective assistance of trial counsel as guaranteed by Section 10, Article I of the Ohio Constitution and the 6th and 14th Amendments.

Supporting Facts: Counsel failed to present false confession evidence when it was crucial to the defense's theory.

Ground Three: The trial court erred to the prejudice of the defendant as there was insufficient evidence to convict. And the verdict was against the manifest weight of the evidence. Supporting Facts: Evidence showed defendant did not commit the offenses and his convictions were not supported by the weight of the evidence.

Ground Four: There was insufficient evidence to sustain a conviction for weapons under disability.

Supporting Facts: No evidence was presented the defendant possessed or had under his control a firearm.

Ground Five: The judgment entry does not reflect the proper manner of conviction related to any of the courts.

Supporting Facts: The entry of judgment does not comport to the record.

Ground Six: The defendant Donald Dawson Durgan's rights to due process of law and an impartial jury, as well as a fair trial pursuant to the 6th and 14th Amendments were violated because he was seen multiple times by the jury in handcuffs and being transported in the company of deputy sheriffs.

Supporting Facts: The defendant was prejudiced by being witnessed by jury member who reacted negatively to seeing him handcuffed.

Ground Seven: Defendant's counsel was ineffective for waiving his presence during a critical stage of the proceedings causing a manifest miscarriage of justice and violating his right to trial. [sic].

(Petition, ECF No. 1, Page ID 6-17). The case was stayed to allow exhaustion of state court remedies on Grounds Six and Seven (ECF Nos. 18, 20, 21, 22). The case is now ripe for decision.

Analysis

Ground One: Denial of Motion to Suppress

In his First Ground for Relief, Petitioner asserts the trial court erred when it failed to suppress his statements to the police. This claim was presented to the First District Court of Appeals which decided the claim as follows:

[¶12] In his first assignment of error, Durgan argues that the trial court erred in overruling his motion to suppress his statements to the police. He argues that the first two times he talked to the police, he was not informed of his rights in violation of Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further argues that the third time he talked to police his statements were not made voluntarily. This assignment of error is not well taken.

A. No. Custodial Interrogation

[¶13] Police officers must advise a person of his or her Miranda rights when that person is subject to custodial interrogation. State v. Tucker, 81 Ohio St.3d 431, 435-436, 1998-Ohio-438, 692 N.E.2d 171 (1998); State v. Bell, 2015-Ohio-1711, 34 N.E.3d 405, ¶ 31 (1st Dist.). Whether a suspect is in custody is an objective inquiry. J.D.B. v. North Carolina, 564 U.S. 261, 270, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011); Bell at ¶ 31.

[¶14] This determination requires two "discrete inquiries": (1) what were the circumstances surrounding the interrogation, and (2) given those circumstances, would a reasonable person have felt that he was at liberty to terminate the interrogation and leave. J.D.B. at 270; Bell at ¶ 32. "Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." J.D.B. at 270, quoting Thompson v. Keohane 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995).

[¶15] The first time police interviewed Durgan was on May 4, 2016, the day of the murder. Durgan was already at the scene when the police arrived. He appeared eager to help and volunteered that the victim had been receiving threatening text messages. Durgan agreed to accompany police back to the police station to be interviewed. Because his truck was part of the crime scene, he could not drive it so police offered to drive him. He was considered a witness, and he was not handcuffed. He points out that a neighbor drove the victim's wife to the police station and that she was not in a police cruiser. But no neighbor offered to drive Durgan, so a police detective drove him. Though he was sitting in a marked cruiser writing a witness statement when detectives first arrived, he was transported in an unmarked car. The only restraint involved was a seat belt. Because Durgan was hungry and diabetic, the detective took him to a restaurant drive-through.

[¶16] At police headquarters, Durgan voluntarily provided more details about his attempts to meet with Singh that morning and his concern when Singh did not appear as planned. Durgan gave police his phone number so police could check his phone records. At the end of the interview, Durgan was allowed to leave and the police gave him a ride back to the crime scene to get his truck. Thus, the record shows that

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