Horne v. Bunting

• Decision Date: 14 November 2014
• Docket Number: Case No. 5:12CV2274
• Parties: MARSHAWN LYNDELL LORE HORNE, Petitioner, v. JASON BUNTING, WARDEN, Respondent.
• Court: U.S. District Court — Northern District of Ohio

MARSHAWN LYNDELL LORE HORNE, Petitioner, v. JASON BUNTING, WARDEN¹, Respondent.

Case No. 5:12CV2274

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

November 14, 2014

JUDGE DAN AARON POLSTER

Magistrate Judge George J. Limbert

Report and Recommendation of Magistrate Judge

On August 17, 2012², Petitioner Marshawn Lyndell Lore Horne("Petitioner"), acting pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. ECF Dkt. #1. Petitioner seeks relief for alleged constitutional violations that occurred in the Summit County, Ohio Court of Common Pleas, during Petitioner's jury trial and conviction for one count of aggravated robbery in violation of Ohio Revised Code ("R.C.") § 2911.01(A)(1), a felony of the first degree, as well as a gun specification in violation of R.C. § 2941.145; one count of having weapons while under disability in violation of R.C. § 2923.13(A)(2), a felony of the third degree; and one count of grand theft in violation of R.C. § 2913.02(A)(1) and (4), a felony of the fourth degree.³ With leave of Court, on March 20, 2013, then Respondent Barry Goodrich, Warden of Lake Erie CorrectionalInstitution filed the answer/return of writ. ECF Dkt. #8. With leave of Court, a traverse was filed on June 28, 2013. ECF Dkt. #12. A sur-reply was filed on July 3, 2013. ECF Dkt. #13.

For the following reasons, the undersigned recommends that the Court DISMISS the instant petition in its entirety with prejudice:

I. SYNOPSIS OF THE FACTS

The Ninth District Court of Appeals of Ohio set forth the relevant facts on direct appeal. State v. Horne, 2011 WL 1486628 (9^th Dist.). These binding factual findings "shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6^th Cir. 1998), cert. denied, 119 S.Ct. 2403 (1999):

{¶ 49} Officer Robert Patrick of the Akron Police Department ("APD") testified that he was on patrol on June 7, 2008, when he was dispatched at approximately 11:30 p.m., to Black Street in Akron, on a robbery call. The officer testified that he was subsequently redirected to the Euro Gyro restaurant on Exchange Street because the robbery victim had gone there. Officer Patrick testified that the victim reported that he was attempting to deliver food to 450 Black Street when two black males approached him and told him the food order was incorrect. The officer testified that the victim reported that one of the men brandished a gun and took the victim's car. Officer Patrick testified that other officers were dispatched to 450 Black Street, which appeared to be an unoccupied residence, to look for suspects but none were found.

{¶ 50} Douglas Sutton testified that he was attempting to deliver a food order from Euro Gyro to 450 Black Street at 11:30 p.m. on June 7, 2008, when a man standing in front of that house informed him that the order was wrong. Mr. Sutton continued to testify as follows. Another man approached and offered to pay for the food, but Mr. Sutton offered to give it to the two men for free. As Mr. Sutton turned to return to his car (a 2005 Dodge Stratus), one of the men pulled out a gun and told Mr. Sutton to "lay it down ." Both men jumped in Mr. Sutton's car and drove away, the man with the gun driving. Mr. Sutton ran away and called 911.

{¶ 51} Mr. Sutton testified that he informed Detective Morrison that he would recognize the man who pulled a gun on him and took his car because he spent 3-5 minutes with him at the scene. When Detective Morrison showed Mr. Sutton a photo array of suspects, the victim identified Horne as the perpetrator immediately.

{¶ 52} Detective Don Frost of the APD crime scene unit testified that on June 11, 2008, he processed a stolen vehicle which had recently been recovered. He testified the vehicle was a Dodge Stratus that contained a piece of mail from the bureau of motor vehicles which was addressed to Mr. Sutton. Detective Frost testified that he dusted the vehicle for fingerprints but was not surprised that he did not find any useable prints because frequently touched surface areas, such as those inside and outside a car, rarely provide definitive, useable prints. The detective testified that the lack of a person's fingerprints inside a vehicle does not mean that the person had notbeen there. Detective Frost testified that he found no hair samples in the car and that he did not swab the car for traces of DNA. He testified that it is standard practice not to swab for DNA in areas of common contact by multiple people because it is not possible to separate more than two DNA standards to determine a known donor.

{¶ 53} Detective Richard Morrison of the APD testified that this case was assigned to him after the victim's car was recovered. He testified that on June 9, 2008, he spoke with the victim who reported that he was robbed at gunpoint by two black males. The detective testified that the car was found on Clark Street in Akron, near the scene of the incident.

{¶ 54} Detective Morrison testified as follows as to how the police developed Horne as a suspect in this case. Rodney Kelly came to the police station on June 10, 2008, and stated that he had read in the newspaper about a stolen vehicle which had recently been recovered. Mr. Kelly reported that he saw someone driving the stolen vehicle the night before it was recovered. Mr. Kelly reported that he was with his daughter when she called out to someone by a nickname he recognized. Knowing that that person had been involved in a criminal incident one to two years earlier, and believing that that person was still in jail, Mr. Kelly looked and recognized the man he knew only by that nickname. Mr. Kelly reported the incident because he did not believe that it was possible that that man owned the newer car he was driving. Detective Morrison was familiar with the prior criminal incident that Mr. Kelly referenced, so he contacted the detective who investigated the prior case. Detective Morrison reviewed the prior case file to identify the defendant in that case and put together a photo array containing that defendant's photograph. Horne was the defendant involved in the prior incident which Mr. Kelly referenced in his report. When Detective Morrison presented the photo array to Mr. Sutton, the victim identified Horne as the person who stole his car at gunpoint.

{¶ 55} Rodney Kelly testified as a hostile witness. In an effort to elicit testimony which would corroborate Detective Morrison's testimony, the State asked very factually specific questions. Nevertheless, Mr. Kelly denied reporting that his daughter called out to "Killer" which caught his attention because he knew an individual who went by the nickname "Killer" because of that individual's involvement in a prior robbery at Dave's Supermarket. Mr. Kelly testified that he did not recall telling the police that the person he saw driving was the same person about whom he had given information to police regarding a prior robbery. In fact, he testified that he did not know what the assistant prosecutor was talking about when she mentioned a 2006 robbery. Mr. Kelly denied telling the assistant prosecutor that he was afraid to testify. He testified that he was only in court because the assistant prosecutor had called his place of employment and threatened him, and that he was not in court pursuant to a subpoena. The transcript of docket and journal entries compiled by the clerk of courts indicates that on February 25, 2009, the assistant prosecutor issued a subpoena for Mr. Kelly's appearance at trial which was to begin on March 2, 2009.

{¶ 56} Detective Morrison again testified in rebuttal to Mr. Kelly's testimony. Detective Morrison reiterated that Mr. Kelly contacted him on June 10, 2008, and reported that he saw "Killer" in a blue Dodge that the newspaper had reported as stolen. The detective testified that Mr. Kelly reported that his daughter called out to "Killer" which caused him to look because he believed that "Killer" was still in jail because of his involvement in a robbery at Dave's Supermarket a year and a half earlier.

{¶ 57} Nicole Walker, an assistant prosecutor, testified that she was originally assigned to this case until the case was transferred to a different courtroom. Ms. Walker testified that she interviewed various witnesses, including Rodney Kelly, for trial preparation. She testified that Mr. Kelly told her that he recognized "Killer" when his daughter called out to someone. She testified that Mr. Kelly told her that he saw "Killer" in a car, later read a newspaper article about a stolen car, "and put two and two together and contacted the police."

{¶ 58} Detective John Bell of the APD testified that he was familiar with Horne because of Horne's involvement in a 2006 aggravated robbery at Dave's Supermarket, located approximately one-half mile from Horne's home. The detective described the area and testified that Horne's home is half-way between Dave's Supermarket and 450 Black Street. He testified that Horne was developed as a suspect in the 2006 aggravated robbery when Rodney Kelly came forward and reported to the police that "Killer" was "possibly involved" in the incident. Detective Bell testified that, during a canvas of the area of the incident, a teenager on the street informed police that "Killer" was Horne's nickname. He testified that police records regarding the 2006 incident reference the nickname "Killer" in regard to Horne. The detective testified that Horne was arrested and ultimately adjudicated delinquent by reason of aggravated robbery for the 2006 incident. Detective Bell identified a certified copy of a journal entry evidencing Horne's delinquency adjudication and commitment to the Ohio Department of Youth Services for the charges of aggravated robbery and kidnapping. The detective confirmed that a delinquency adjudication and disposition

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