Dickerson v. Warden

• Decision Date: 26 April 2016
• Docket Number: Case No. 2:15-cv-0068
• Parties: REGIS L. DICKERSON, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

REGIS L. DICKERSON, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:15-cv-0068

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 26, 2016

Judge Frost

OPINION AND ORDER

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.This matter is before the Court on the Petition(ECF No. 1), as amended, see Order(ECF No. 12), Respondent's Return of Writ(ECF No. 9), Petitioner's Reply to Return of Writ(ECF No. 11), and the exhibits of the parties.For the reasons that follow, the petition for a writ of habeas corpus is DENIED and this action is hereby DISMISSED.

Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

In September 2010, appellant was indicted for two counts of murder with firearm specifications for the killing of Corey Hart.The indictment also contained two counts of felonious assault with specifications based on incidents occurring on separate dates and involving different victims; however, the trial court granted appellant's motion to sever those counts, and the case proceeded to trial on the murder counts.The following evidence was presented at the murder trial.

Officer Matthew Hauser testified that, during the early morning hours of August 17, 2010, he was dispatched to the Woods Bar in Columbus in response to a reported shooting.Upon arrival, he observed several females in the parking lot screaming and pointing to a man, later identified as Hart, leaning up against a car going in and out of consciousness.Officer Hauser saw what appeared to be a ring of blood surrounding a bullet hole in Hart's t-shirt.Hart was transported to Grant Hospital, where he was declared dead shortly thereafter.A deputy coroner with the Franklin County Coroner's Office testified that the cause of death was a single gunshot wound to the abdomen; the manner of death was homicide.

The state presented two eyewitnesses who testified that they observed appellant fire a single gunshot into Hart's abdomen at close range.The first was Roshonna Perry(a.k.a."Diamond"), appellant's close friend since childhood.Perry testified that she arrived at the Woods Bar earlier that night and met with appellant, his girlfriend, his cousin, and two of his friends.Later in the evening, Perry began arguing with one of appellant's friends, Mike Myers, whom she had fought with in the past.The argument became physical, and appellant attempted to hold Perry back while others pushed Myers out of the bar.As Myers was being moved outside, Perry hit him in the head with brass knuckles.Myers was "bleeding everywhere" after Perry punched him, and he got in the nearby SUV owned by appellant's girlfriend.(Tr. 236.)

Perry continued yelling at Myers when she was approached by Hart, the father of her best friend's sister.Hart, who was also at the bar that night, asked Perry, "You good?," which apparently offended appellant.(Tr. 247.)Appellant told Hart, "This don't got nothing to do with you, this is family shit."(Tr. 249.)According to Perry, the two men began to argue when, without warning, appellant pulled out a gun and shot Hart once in the middle of the chest.Perry had not seen Hart threaten appellant or display any weapons.

Perry initially fled the scene, but she quickly changed her mind and returned to care for Hart.She saw the SUV drive away and did not hear from appellant until a telephone conversation 45 minutes later.During the conversation, appellant told Perry, "That nigger ain't family, don't go up to the hospital to see him."(Tr. 257-58.)The next morning, Perry lied to police about the identity of the shooter in order to protect appellant.After speaking with her mother, however, Perry decided to contact police to tell them the truth.Perry later met with detectives and selected appellant out of a photo array.

The state's second eyewitness was appellant's cousin, Mikaelle Edwards, who went to the bar with appellant the night of the shooting.Edwards witnessed the fight between Perry and Myersand sat with Myers in the SUV while appellant and Hart argued in the parking lot.According to Edwards, she tried to convince appellant to get in the car when appellant suddenly pulled out a silver revolver and fired a single shot into Hart's upper stomach.Like Perry, Edwards did not see Hart threaten appellant or carry any weapons.

Edwards testified that, after appellant got into the SUV, they drove away from the shooting.According to Edwards, appellant appeared calm after the shooting.While she was "hysterically crying" about what had happened, appellant assured her, "it is going to be all right."(Tr. 326.)Edwards did not speak with police until several weeks later, when she met with detectives and was presented with a photo array.After looking at the array, Edwards positively identified appellant as the shooter.

After the state's case-in-chief, appellant presented the testimony of several witnesses, including two employees of the bar who denied seeing appellant that night or hearing any gunshots.Additionally, appellant's girlfriend, Mykesha Loney, testified that she was not at the bar or with appellant that evening.

The jury returned from deliberations to find appellant guilty of both murder counts with the attendant firearm specifications.At sentencing, the trial court merged the murder counts and imposed a total prison sentence of 18 years to life.

II.Assignments of Error

In a timely appeal, appellant advances the following assignments of error for our consideration:

I.THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF MURDER AS THAT VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

II.THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND DENIED HIM A FAIR TRIAL AND DUE PROCESS OF LAW PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE

OHIO CONSTITUION BY NOT ALLOWING HIM TO PRESENT EXCULPATORY EVIDENCE AND TO PRESENT A COMPLETE DEFENSE TO THE CHARGES.

State v. Dickerson, No. 11AP-789, 2012 WL 2928667, at *1-2(Ohio App. 10^th Dist.July 19, 2012).On July 12, 2012, the appellate court affirmed the judgment of the trial court.Id.On November 28, 2012, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question.(ECF No. 9-1, PageID# 253);State v. Dickerson, 138 Ohio St.3d 1490(2012).

On October 3, 2012, Petitioner filed an application to reopen the appeal pursuant to Ohio AppellateRule 26(B).(ECF No. 9-1, PageID# 254.)Petitioner alleged that he had been denied the effective assistance of appellate counsel because his attorney failed to raise additional claims on appeal: that the trial court denied him the right to counsel when it refused to permit his counsel of choice to participate; that the prosecutor failed to timely disclose witness identities and statements; that he was denied a fair trial because a juror read a newspaper headline referring to his 2004 acquittal in a different case during trial; that the trial court abused its discretion when it reprimanded the jury for questions during deliberations; and that the prosecutor failed to provide the correct address for a key exculpatory witness.(PageID# 254-63.)On February 14, 2013, the appellate court denied Petitioner's Rule 26(B) application.(PageID# 281.)Petitioner apparently did not file an appeal from that decision.

On July 17, 2012, Petitioner filed a pro se petition to vacate or set aside the judgment of conviction.The Ohio Tenth District Court of Appeals summarized the facts and procedural history of that proceeding:

[Appellant alleges] the following nine claims for relief: (1)the state withheld the names and addresses of witnesses until the day of trial, (2) trial counsel's failure to object to the non-disclosure of witnesses constituted ineffective assistance of counsel, (3) the jurywas exposed to prejudicial newspaper headlines which revealed appellant had previously been acquitted of murder, (4)the prosecution engaged in misconduct at trial by informing the jury that two individuals did not know each other, (5) trial counsel was ineffective in failing to investigate the name of a potential witness provided to counsel by appellant prior to trial, (6) trial counsel was ineffective in providing appellant misleading information regarding a plea bargain, (7)appellant was denied his right to due process because several members of the victim's family had lunch at the same restaurant as several of the jurors, (8)the state failed to provide the correct address of a key witness until after the start of the trial, and (9) trial counsel was ineffective in failing to call a potential witness, Tony Reno, to testify.

On July 30, 2012, the state filed a memorandum contra appellant's motion to vacate or set aside judgment, arguing that appellant had not provided sufficient evidence to warrant a hearing on the petition, that the claims should have been raised on direct appeal, and that appellant had failed to demonstrate ineffective assistance of trial counsel.By decision and entry filed February 20, 2013, the trial court denied appellant's petition.

On appeal, appellant sets forth the following five assignments of error for this court's review:

FIRST ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT GRANTING POSTCONVICTION RELIEF BASED ON APPELLANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL THEREBY DENYING HIM RIGHT TO COUNSEL GUARANTEED BY THE 6TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION.

SECOND ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT GRANTING POSTCONVICTION

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