Franklin v. Anderson, C-l-95-1007.

• Decision Date: 31 March 2003
• Docket Number: No. C-l-95-1007.,C-l-95-1007.
• Citation: 267 F.Supp.2d 768
• Parties: George T. FRANBXJN, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

267 F.Supp.2d 768

George T. FRANBXJN, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.

No. C-l-95-1007.

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

March 31, 2003.

COPYRIGHT MATERIAL OMITTED

Wayne Paul Stephan, Flanagan, Lieberman, Hoffman & Swaim, Dayton, OH, David Bodiker and Stephen A. Ferrell, Ohio Public Defender's Office, Columbus, OH, for Petitioner.

Charles L. Wille, Assistant Attorney General, Jonathan R. Fulkerson, Ohio Attorney General, and Heather L. Gosselin, Assistant Attorney General, Capital Crimes Section, Columbus, OH, for Respondent. Decision and Entry Overruling Respondent's Objections (Doc. #106) to Report and Recommendations of Magistrate Judge (Doc. # 105); Decision and Entry Overruling Petitioner's Objections (Doc. # 108) to Report and Recommendations of Magistrate Judge (Doc. # 105); Decision and Entry Overruling Petitioner's Objections (Doc. # 114) to Amended Supplemental Report and Recommendations of Magistrate Judge (Doc. # 112); Report and Recommendations of Magistrate Judge (Doc. # 105) Adopted, as Supplemented Herein; Amended Supplemental Report and Recommendations of Magistrate Judge (Doc. # 112) Adopted, as Supplemented Herein; Conditional Writ of Habeas Corpus Granted; Certificate of Appealability Granted; Leave to Appeal in Forma Pauperis Granted; Judgment to be Entered in Favor of Petitioner and Against Respondent on the Sixth Claim and a Portion of the First Claim and in Favor of Respondent and Against Petitioner on the Remaining Claims; Termination Entry.

RICE, Chief Judge.

Petitioner George Franklin ("Franklin" or "Petitioner") was charged with one count of aggravated murder, with death penalty specifications, arising out of the homicide of Gerald Strauss ("Strauss"), as well as two counts of burglary. His case was assigned to Judge Ralph Winkler of the Hamilton County Common Pleas Court. On December 7, 1988, a jury in Hamilton County convicted him of those offenses. On December 12, 1988, the penalty phase of Franklin's trial occurred, with the jury finding that the state had proved beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors and returning a recommendation that the death penalty be imposed. Thereafter, Judge Winkler conducted his own independent review of the evidence and found that the state had proved beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. Accordingly, the trial court sentenced Franklin to death.

In accordance with Ohio law as it then stood, Petitioner appealed to the Hamilton County Court of Appeals. That appellate court rejected Franklin's assignments of error and, after conducting its own independent review of the evidence, concluded that the state had proved beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. State v. Franklin, 1990 WL 117140 (Ohio App.1990). Thus, the court of appeals affirmed Franklin's conviction and the death penalty imposed upon him. The Petitioner appealed that decision to the Ohio Supreme Court, which affirmed the Hamilton County Court of Appeals. State v. Franklin, 62 Ohio St.3d 118, 580 N.E.2d 1 (1991), cert, denied, 504 U.S. 960, 112 S.Ct. 2315, 119 L.Ed.2d 235 (1992). The Ohio Supreme Court also independently weighed the aggravating circumstances and mitigating factors, concluding that the state had met its burden of proof in that regard. In its decision, the Ohio Supreme Court summarized the facts and circumstances surrounding the crimes for which the Petitioner was convicted:

About 4:00 p.m. on July 21, 1988, Rosha Winston returned to her one-room apartment on Eden Avenue in Cincinnati to find that her TV set had been taken. A framed picture and some decorative glass dishes had been moved from the top of the TV and placed on the kitchen table. A window screen at the rear of the apartment had been partly torn out and the windowsill had mud on it.

The window that had a torn screen was about six feet off the ground from the outside. Police noticed a circular imprint made in the muddy ground under the window. The circle was thought to have been made by a metal garbage can, on which the burglar stood to reach the window. Several metal cans sat on concrete across the driveway separating Winston's apartment from the building next door. One of the cans had mud around the top. A large barking dog, chained to a nearby handrail, prevented police from approaching the cans.

Winston told police she suspected George Franklin, a neighbor, of the burglary. Franklin lived in an apartment next door with his grandfather. When questioned by police on the same day as the burglary, Franklin used the name of George Fichtel. Franklin appeared nervous, and wanted to know what evidence the police had. He admitted that the dog belonged to his grandfather, and controlled it long enough for the officer to inspect the garbage cans.

Police found Franklin's fingerprint on the picture that had been on top of the stolen TV. By the time police identified Franklin as the burglar, he had disappeared.

On or about July 23, 1988, Gerald R. Strauss and his fiancee Karen Strain moved into a townhouse on Corry Street in Cincinnati. On Saturday, August 6, 1988, Strauss and Strain picked up Richard Thompson, a friend of Strauss, at the airport. The next morning, Strain left on a business trip. Thompson and Strauss spent the day in various activities, including a cookout on the apartment patio. Strauss dropped Thompson off in downtown Cincinnati at around 10:00 that evening.

At about 10:30 p.m. a neighbor, Leonard Bass, saw Strauss cleaning the patio and apartment. Shortly after 11:00 Bass saw Strauss go upstairs, and saw lights turned off in the apartment. Another neighbor, Catherine Schaffner, while out walking her dog between 11:00 and 11:30, heard a "horrible," "very loud, very forceful" scream that lasted two or three seconds. The sound seemed to come from the direction of Strauss's building. A few minutes later, after Schaffner got home, her dog started barking which usually indicated a stranger passing close to the house.

The next morning Mitch Walker, a coworker at Proctor & Gamble, tried to call Strauss when he did not show up for work. After getting busy signals, Walker asked the operator to break in. The operator determined that the phone was off the hook. Walker then drove to Strauss's townhouse, and found the front door ajar. He asked a police officer to investigate. The officer entered the townhouse and found Strauss's body in an upstairs bedroom.

The coroner arrived that morning and concluded that Strauss had been dead six to eighteen hours. Upon laboratory examination, the body revealed bruises on the right hand; lacerations, broken bones and a crushed eyeball from two blows to the face; and lacerations and broken bones from a large number of blows to the back of the head. The cause of death was bone fragments driven into the brain. The wounds were described by the coroner as consistent with having been caused by a claw hammer.

According to both Thompson and Strain, Strauss had left a Marion brand claw hammer in the upstairs guest bedroom. The hammer was not found in the house. Other items were missing from the house, including Strauss's money clip with several twenties, his credit cards, his watch, a VCR, and a briefcase with personal papers. In a wooded area a few blocks away, police found the briefcase and personal papers, credit cards, and a placemat that matched others in the townhouse. Assisted by a tracking dog, the police found a bloodstained Marion brand claw hammer in the woods. The VCR, watch, money clip and money were never recovered, despite the offer of a reward.

A screen had been torn out in a patio window of the townhouse. Karen Strain testified that she and Strauss kept an empty champagne bottle as a souvenir on the inside sill of that window. When police found the body, the bottle had been carried upstairs and left in the guest bedroom.

The police noticed a similarity to the Winston burglary. Both crimes occurred in the same neighborhood, within seventeen days of each other. A TV was taken from Winston, a VCR from Strauss, and both entries had been obtained by tearing or cutting a screen from a rear window. A latent fingerprint lifted from the champagne bottle in the Strauss townhouse matched Franklin's known prints.

Police traced Franklin to the apartment of a Glenn Davis. When officers arrived on August 18, Davis answered the door and said he lived there with his cousin, Gerald Evans. The police recognized "Gerald Evans" as Franklin and arrested him.

Michael Turnbolt, who spent the evening of the Strauss murder, August 7, with Franklin, testified that both had been using drugs. Franklin left at about 10:30 p.m., at which time he apparently had no money. Franklin returned and woke Turnbolt at about 2:30 a.m. Turnbolt described this as unusual. Franklin had changed his shirt, and had $100 to $150, which he later used to purchase a gram of cocaine.

Id. at 118-20, 580 N.E.2d at 3-4.

Thereafter, Franklin continued to attempt to secure relief in the Ohio courts, by seeking post-conviction relief pursuant to Ohio Revised Code § 2953.21, as well as by requesting that the Ohio Supreme Court recall its mandate and permit supplemental briefing. The Ohio Supreme Court denied Petitioner's requests, without an opinion. State v. Franklin, 63 Ohio St.3d 1402, 585 N.E.2d 424 (1992). In addition, Franklin's petition for post-conviction relief was denied by the Hamilton County Common Pleas Court without an evidentiary hearing, a decision which was affirmed by the Hamilton County Court of Appeals. See State v. Franklin, 1995 WL 26281 (Ohio App.), appeal not allowed, 72 Ohio St.3d 1538, 650 N.E.2d 479, cert, denied, 516 U.S. 950, 116 S.Ct. 394, 133 L.Ed.2d 315 (1995).

After having exhausted his available state remedies, Petitioner initiated this action, requesting a writ...