Durham v. Marquis

• Decision Date: 30 June 2020
• Docket Number: 1:18-CV-02520-SL
• Parties: BRYAN A. DURHAM, Petitioner, v. WARDEN DAVE MARQUIS, Respondent.
• Court: U.S. District Court — Northern District of Ohio

BRYAN A. DURHAM, Petitioner,
v.
WARDEN DAVE MARQUIS, Respondent.

No. 1:18-CV-02520-SL

United States District Court, N.D. Ohio

June 30, 2020

SARA LIOI UNITED STATES DISTRICT JUDGE.

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 Bryan Durham (“Durham” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C § 2254. Durham is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Durham, Cuyahoga County Court of Common Pleas Case No. CR-14-585105-A For the following reasons, the undersigned recommends that the Petition be DISMISSED IN PART and DENIED IN PART.

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 Durham's conviction as follows:

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{¶ 2} In May 2014, Durham was indicted by the Cuyahoga County Grand Jury for the following counts relating to the death of Herman Coleman (“Coleman”)

(1) aggravated murder (R.C. 2903.01(A)) with a 1-year firearm specification (R.C. 2941.141(A)) and a 3-year firearm specification (R.C. 2941.145(A))

(2) murder (R.C. 2903.02(B)) with a 1- and 3-year firearm specification

(3) felonious assault (R.C. 2903.11(A)(1)) with a 1- and 3-year firearm specification, a notice of prior conviction (R.C. 2929.13(F)(6)), a repeat violent offender specification (R.C. 2941.149(A)) in CR-92-283608, and a notice of prior conviction and repeat violent offender specification in CR-92-278596;

(4) felonious assault (R.C.2903.11(A)(2)) with a 1- and 3-year firearm specification, 2 notices of prior conviction, and 2 repeat violent offender specifications; and

(5) having a weapon while under disability (R.C. 2923.13(A)(2)).

{¶ 3} On January 27, 2015, Durham was convicted by the trial court, after waiving a jury trial on the issue, of having a weapon while under disability. He was convicted by the jury on all remaining counts, with the trial court determining that the repeat violent offender specifications would be considered at sentencing.

{¶ 4} On January 28, 2015, the parties agreed at the sentencing that counts 1, 2, 3, and 4 are allied offenses and that the 1- and 3-year firearm specifications merged. The state elected to have Durham sentenced on the aggravated murder count with 3-year firearm specification, for which Durham was sentenced to life with parole at 30 years plus a consecutive 3 years for the firearm specification. He received a concurrent 36-month sentence on count 5, having a weapon while under disability, with postrelease control advisement. Defendant timely appeals his convictions for aggravated murder, murder, and felonious assault.

A. Trial

{¶ 5} At the trial, the state called approximately 29 witnesses and introduced several hundred exhibits. We summarize the evidence relevant to the issues raised in this appeal.

{¶ 6} On April 15, 2014, the body of Herman Coleman (“Coleman”) was discovered by his ex-wife, Darlene Ware-Coleman (“Darlene”), and

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friends Anthony Henderson (“Henderson”), and Jay Dempsey (“Dempsey”). The body was located behind a commercial building with a fenced yard, located at 16826 Miles Avenue, Cleveland, Ohio (“the property”). Coleman purchased the property in 2013 to start a tow truck business to supplement his regular income as a pharmacy technician and to support him during retirement. The coroner determined that Coleman was killed by a close range gunshot to the lower left jaw and calculated the time of death to be less than 24 hours from the coroner's arrival at the scene at 12:20 p.m. on April 15, 2014.

{¶ 7} According to Darlene, a 30-year postal service employee, though divorced, she and Coleman maintained a close relationship. After leaving the pharmacy, Coleman's habit was to have dinner at Darlene's house with Darlene and their daughter.

{¶ 8} Coleman hired Durham in 2013 to repair and rehabilitate the property in exchange for allowing Durham use of the warehouse to store his commercial construction vehicles and equipment. Coleman began to express his disappointment with Durham's conduct in March 2014 when Durham and his friend, Marcel Caver (“Caver”), went to a warehouse owned by a longtime friend of Coleman, James “Boochie” Willis (“Willis”), alleging that Caver's stolen truck was there (“truck incident”). The police were called but were unable to enter without a warrant. Someone broke through the door, but the truck was not located. Darlene said that Durham wanted Coleman to get involved and that Durham was upset because Coleman refused.

{¶ 9} Coleman also complained to Darlene that Durham and his friends would hang out at the property all hours of the day and night drinking alcohol. On April 14, 2014, Coleman told Darlene that he was going to ask Durham to move out, a decision embraced by Darlene. Coleman left Darlene's house about 7:30 p.m. to meet with Durham at the property.

{¶ 10} Darlene and Coleman normally telephoned each other at bed time and in the mornings; however, Darlene was unable to reach Coleman that evening and her attempts throughout the next morning were unfruitful. She left work early to go to the property. Darlene saw Coleman's white pick-up truck behind the locked building gate and called Coleman's brother, John Coleman (“John”).

{¶ 11} John called Dempsey, and John went to check Coleman's house while Dempsey headed to the property to meet Darlene. Henderson was at the property when Dempsey arrived.

{¶ 12} On his way to the property, Henderson called Durham to ask if he had seen Coleman and to request that Durham open the locked gate, advising him that Darlene could see Coleman's truck behind the fence.

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Durham said he had seen Coleman the night before but that Coleman left when it began raining. He also said that he was unable to come to unlock the fence because he was going to pick up his drain snake at a pawn shop.

{¶ 13} Dempsey showed Darlene and Henderson how to access the property through an adjacent fence. They found Coleman's body in the snow at the back of the property by the dumpsters, and called 911. Dempsey did not see any footprints in the snow.

{¶ 14} John arrived at the scene concurrently with Cleveland Police Department (“CPD”) Officer Lee Davis (“Officer Davis”), and another officer. They climbed the fence and went to the back of the property where Coleman's body was lying. Later at the scene, John saw Durham sitting in the back of a police car and told him that they needed to talk. Durham focused on his cell phone and shook his head. John testified on cross-examination that his brother and Durham had keys to the property and he did not know if a third individual, Brian Gregory (“Gregory”), had a key also.

{¶ 15} Officer Davis went to high school with Coleman, and Durham was the half-brother of Officer Davis's deceased cousin. Officer Davis heard a “man down” dispatch broadcast and recognized the property address and responded with his partner. Durham called Officer Davis while he was on the way to the scene and told him something had happened at the shop. Officer Davis said he and John arrived concurrently and together ran to the area. He observed snow on Coleman's truck and body, but his primary focus was to prevent John, who was very emotional, from disturbing the scene.

{¶ 16} Officer Davis called Durham and told him that he needed to come to the property, but did not tell him Coleman had been located. The first time he saw Durham was later that morning when Durham was sitting in the back of a police car.

{¶ 17} Officer Davis also testified regarding the truck incident that transpired several weeks earlier involving Durham, Caver, Gerome Hardy (“Hardy”), who is also a relative of Officer Davis, and an unknown man. Officer Davis called a zone car from the CPD Third District who arrived at the scene and said there was nothing they could do except make a report. Officer Davis left them at the location with the zone car. He did not know why Caver thought his vehicle was there, did not know who owned the property, and there was no mention of Coleman.

{¶ 18} Thomas Ciula (“Ciula”), a forensic video specialist with CPD, accompanied CPD Detective Tom Lynch (“Detective Lynch”) to the

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O'Reilly Auto Parts Store located at the corner of Lee Road and Miles Avenue on April 22, 2014, to download and view the security video for April 14, 2014 from 4:00 to 10:00 p.m. that depicted the Lee and Miles intersection (“Lee and Miles”).

{¶ 19} Ciula said that the fact the video clock was 4 years, 258 days, 3 hours and 47 minutes behind was not an unusual occurrence and his computer software was designed to sync the information to provide an accurate time reference for video review. Ciula walked through the processing and chain of custody. He delivered the results to Detective Lynch that depicted traffic activities at Lee and Miles from 7:55 to 8:03 p.m. on April 14, 2014. Ciula had not been given information about the case.

{¶ 20} Officer Ryan McMahon (“Officer McMahon”) responded to a dispatch call to the crime scene to assist officers and emergency medical service personnel with securing the scene. Officer Eddie Robinson (“Officer Robinson”) told Officer McMahon that several family members informed him

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