Graggs v. Warden, Ebanon Corr. Inst., CASE NO. 2:12-CV-190

• Decision Date: 30 May 2013
• Docket Number: CASE NO. 2:12-CV-190
• Parties: JOHN Q. GRAGGS, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOHN Q. GRAGGS, Petitioner,

v.WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:12-CV-190

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

May 30, 2013

JUDGE SMITH

MAGISTRATE JUDGE KING

ORDER and

REPORT AND RECOMMENDATION

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, Doc. No. 1, Respondent's Return of Writ, Doc. No. 8, Petitioner's Reply, Doc. No. 26, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Petitioner's request for an evidentiary hearing and his Motion to Supplement the Evidence and Motion for Leave to Supplement the Evidence, Doc. Nos. 31, 32, are DENIED.

FACTS and PROCEDURAL HISTORY

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

The charges in this case arise out of the shooting death of Fred Brock, also known as "Food Stamp Freddie" ("Brock") that occurred on January 8, 2008. The following description of events surrounding Brock's death were adduced at trial.

Marcus Jones ("Marcus") had been living at 3566 East Main Street, Apartment B-11, for about three months prior to Brock'sdeath. According to Marcus, he and his friend Jessie Lanier ("Lanier") sold cocaine out of this apartment. Marcus testified they sold bricks of cocaine for $28,000 apiece. Brock was a friend of Lanier's that met Marcus about three days prior to the shooting. Essentially, Brock was hired to "stay in the house and pretty much make sure no one came in the house and took the money and the drugs." (Tr. 351.)

On January 8, 2008, Marcus picked up his cousin, Dominic Jones ("Dominic"), and they went to a local high school basketball game. When Marcus left, Brock was on the couch watching television and Lanier was in the bathroom. While at the basketball game, Marcus saw Lanier arrive at the game alone. After the game, Marcus and Dominic went to the home of Marcus's father, Marvin Jones ("Marvin"), and began watching a movie. After being at Marvin's for approximately 15 minutes, Marcus got a telephone call from Lanier telling Marcus to come to the apartment. When Marcus and Dominic arrived at the apartment, Lanier was not there, but Lanier and a girl arrived about two minutes later. The three men entered the apartment where Brock was lying face down on the floor, handcuffed and shot.

Marcus testified he never touched the body, but he was scared and he, Dominic, and Lanier began to clear the apartment of drug paraphernalia and things related to the drug operation, including scales and $17,000 in cash. After taking several loads of items to Lanier's vehicle, Lanier left the complex. Marcus and Dominic then left the apartment and went to the Barnett Recreation Center where they called Marvin. According to Marvin, about 15 minutes had passed from when Marcus and Dominic left his house and made the call. Marvin told Marcus to call the police, and the three men proceeded to the apartment complex. Marvin went into the apartment with Dominic while Marcus called 911 from the hallway.

Just as the dispatch was ending, Whitehall Police Officer Eric Hollyfield pulled into the parking lot of the apartment complex and observed a man waving "frantically" to him. (Tr. 35.) As Officer Hollyfield entered the building, two other men directed him to Apartment B-11. Upon entering the apartment, Officer Hollyfield observed the victim lying face down on the floor. There was blood on the victim's back, and his hands were handcuffed behind his back. After clearing the room, Officer Hollyfield checked for a pulse and called for medics. According to Officer Hollyfield, the entire apartment appeared to be in disarray and "methodicallyransacked," as dresser drawers were pulled out and cushions were flipped. (Tr. 73.)

Marcus testified that though the apartment had been neat when he left, "everything was just thrown around" when he returned from the basketball game. (Tr. 378.) Marcus also discovered that $35,000 in cash and Lanier's revolver were missing from the apartment. Though Marcus testified he initially lied to the police because he feared facing drug charges, he later told them the "whole truth" after he was arrested. (Tr. 388.) Marcus denied touching or shooting a gun on January 8, 2008; however, a gun shot residue test conducted at 10:33 p.m. that day revealed particles "highly indicative" of gunshot powder residue. Marcus denied knowing or ever meeting appellant.

According to the testimony of the medical examiner, Brock had been shot three times, twice to the back and once to the head. Heather Ann Williams, a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation ("BCI"), testified that the bullet recovered from Brock's thorax and the bullet recovered from the floor were fired from the same gun, but the bullet recovered from Brock's head was fired from a different gun.

During evidence collection at the scene, the tip of a green latex glove was found under Brock's body. The glove was found to contain the DNA of appellant. A search of appellant's residence revealed a revolver and a green latex glove. The gun was determined not to be one that fired any of the bullets recovered from the scene, but the glove tip from the scene was determined to be similar to the glove found at appellant's residence.

On January 9, 2008, at approximately 1:25 p.m., appellant paid cash for a pair of diamond earrings at Jared's jewelry store in the total amount of $480.35. At 8:19 p.m. that day, appellant returned to Jared's and paid $4,771.69 in cash for an anniversary ring. On January 14, 2008, appellant also made a lump-sum payment of $2,900 on the loan for his Cadillac. There was testimony that as of January 8, 2008, appellant was working full time and making $16.26 per hour, and he netted $443.73 on January 4, 2008 and $495.76 on January 11, 2008. Additionally, prior to making the lump-sum payment on the vehicle, appellant had made only erratic payments during 2007.

During an interview with Whitehall Detective Steve Brown, appellant told Detective Brown that while he knew Brock, he hadnot seen him in ten years. Appellant also told Detective Brown that he was unfamiliar with the apartments where Brock was killed and had never been there. Appellant denied even knowing where the apartments were located. According to phone records, appellant made three calls between 7:42 and 7:43 p.m. on January 8, 2008 in the vicinity of a cell tower one-half mile from Marcus's apartment. At approximately 8:50 p.m. that same day, appellant made two calls in the vicinity of a cell tower near his home. None of the calls appeared to have been made to Marcus, Dominic or Lanier.FN1

FN1. There is no testimony from Lanier in this case as he was shot and killed in an unrelated incident prior to this trial.

On February 15, 2008, appellant was indicted for one count of aggravated robbery, one count of kidnapping, one count of murder, and two counts of aggravated murder, all with firearm specifications. A jury trial began on January 13, 2009. After the state presented its case, it dismissed the murder charge. On January 22, 2009, the jury found appellant guilty of all the remaining counts, but not guilty of the firearm specifications. On February 5, 2009, appellant filed a motion for a new trial pursuant to Crim.R. 33, and said motion was denied on February 23, 2009. A sentencing hearing was held on February 26, 2009, and an aggregate sentence of life imprisonment without parole was imposed.

State v. Graggs, No. 09AP-339, 2009 WL 3778000, at *1-3 (Ohio App. 10th Dist. Nov. 12, 2009). Represented by new counsel, Petitioner pursued a direct appeal from his conviction, in which he asserted the following assignments of error:

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 AGGRAVATED MURDER, KIDNAPPING AND AGGRAVATED ROBBERY AS THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO PROPERLY INSTRUCT THE JURY AS TO ACCOMPLICE LIABILITY THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION.

III. APPELLANT'S TRIAL COUNSEL WERE INEFFECTIVE, THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

Id. On November 12, 2009, the appellate court affirmed the trial court's judgment. Id. Petitioner did not file a timely appeal to the Ohio Supreme Court. On December 16, 2010, Petitioner filed a motion for delayed appeal. Exhibit 29 to Return of Writ. On February 2, 2011, the Ohio Supreme Court denied that motion. State v. Graggs, 127 Ohio St.3d 153 (2010).

On November 10, 2009, Petitioner filed a petition for postconviction relief with the trial court. The trial court dismissed that petition on February 16, 2010 without a hearing, finding that the claims presented in the petition were barred by res judicata and, alternatively, were substantively without merit. Petitioner filed an appeal from that dismissal, presenting a single assignment of error:

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT FRIST [sic] HOLDING A HEARING.

State v. Graggs, No. 10AP-249, 2010 WL 4793371, at *2 (Ohio App. 10th Dist. Nov. 23, 2010). On November 23, 2010, the appellate court affirmed the trial court's judgment. Id. On March 2, 2011, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Graggs, 128 Ohio St.3d 1415 (2011).

On March 29, 2011, Petitioner filed an application to reopen his direct appeal...