Hubbard v. Foley

• Decision Date: 05 January 2022
• Docket Number: 1:21-CV-00129
• Court: U.S. District Court — Northern District of Ohio
• Parties: CORDELL HUBBARD, pro se, Petitioner, v. KEITH J. FOLEY, Warden, Respondent.

CORDELL HUBBARD, pro se, Petitioner, v. KEITH J. FOLEY, Warden, Respondent.

No. 1:21-CV-00129

United States District Court, N.D. Ohio, Eastern Division

January 5, 2022

PATRICIA A. GAUGHAN MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

David A. Ruiz United States Magistrate Judge

Cordell Hubbard ("Hubbard" or "Petitioner") represented by counsel, has filed a second petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in the Cuyahoga County Court of Common Pleas Case No. CR-03-435700-A.^[1] (R. 1.) The petition is before the magistrate judge pursuant to Local Rule 72.2. Currently before the comt is Respondent's Motion to Transfer the petition to the Sixth Circuit Court of Appeals as a second or successive petition. (R. 5). Petitioner despite being represented by counsel, has not filed a response. The undersigned reconunends that the Motion to Transfer be GRANTED and the case transferred to the Sixth Circuit Comt of Appeals pursuant to 28 U.S.C. §2244(b) as a second or successive habeas petition seeking relief under 28 U.S.C. § 2254 I. Summary of Facts and Procedural History

A. History Up to the First Habeas Petition^[2]

The petitioner Cordell Hubbard (“Hubbard”) has filed, through counsel, an amended petition for a writ of habeas corpus arising out of his 2003 convictions for complicity to commit aggravated murder, murder, complicity to commit murder, kidnapping, complicity to commit kidnapping, felonious assault, and complicity to commit felonious assault, with firearm specifications, in the Cuyahoga County, Ohio, Court of Common Pleas. (Doc. 11.) Hubbard raises four grounds for relief in his amended petition:

1. Due Process was violated when the state trial court refused to grant Petitioner's request for severance and permitted the introduction into evidence of incriminating statements by a co-defendant against the Petitioner in the absence of the opportunity for cross-examination.

2. Due Process was violated when Petitioner's identification was based on a flawed and unreliable photo array and the testimony of a witness who was clearly intoxicated and under the influence of drugs and another witness who previously stated that she could not possibly identify anyone at the murder scene.

3. Due Process was violated by the admission of testimony in Petitioner's trial regarding inculpatory statements allegedly made to its author by a non-testifying co-defendant and when the prosecution presented a belated identification witness whose testimony was unavailable for challenge during the voire [sic] dire which was requested and granted prior to trial.

4. Due Process was violated when the State Court misapplied the federal standard necessary to determine whether the guilty verdicts returned against the Petitioner were supported by insufficient evidence.

(Doc. 11, at 8-9.)

[] FACTUAL AND PROCEDURAL BACKGROUND

The Ohio Court of Appeals set forth the following factual background:

Appellant [Cordell Hubbard] was indicted and tried with two codefendants, Nichole Hubbard, appellant's sister, and Ru-el Sailor. At the conclusion of trial, appellant was found guilty of complicity to commit aggravated murder (Count 2), murder (Count 3), complicity to commit murder (Count 4), kidnapping (Counts 5 and 7), complicity to commit kidnapping (Counts 6 and 8), felonious assault (Counts 9 and 10) and complicity to commit felonious assault (Counts 11 and 12), all with one-year firearm specifications. Prior to sentencing, the trial court merged counts 2, 3 and 4, counts 5 and 6, counts 7 and 8, counts 9 and 11, and counts 10 and 12. The trial court then sentenced appellant to a total of 23 years to life in prison . . .

The facts relative to this case are as follows. On the evening of November 17, 2002, Nichole Hubbard, Clark Williams (“Williams”), Maria Whitlow and Omar Clark (“Clark”) were “hanging out” at the home of Ellen Taylor. Later in the evening, Nichole, Williams, Clark, and Whitlow left to procure drugs. Nichole gave Williams twenty dollars to purchase a “wet” cigarette*, with the understanding that he was to pay her back in full. Whitlow did not participate in the drug buy and was dropped off at her house before the purchase was made. After smoking the wet cigarette, Williams repaid Nichole only ten dollars, arguing that she shared in the drugs and should bear some of the cost. Nichole became enraged and accused Williams and Clark of cheating or “playing” her. She called her brother, appellant, on her cell phone; she then got in her car and left. Williams and Clark proceeded down Englewood Road toward the home of Ellen Taylor.

* A cigarette dipped in a solution containing PCP.

A short time later, appellant and Ru-el Sailor arrived on Englewood Road. Appellant and Williams argued about the money Nichole claimed Williams owed to her. Meanwhile, Clark confronted Sailor, who was the driver of the car. Williams noticed that appellant used his cell phone during the altercation; he then noticed that Sailor was holding a gun on him. Williams began to run when shots rang out. In the melee, Clark was shot eleven times and killed. Williams suffered a slight gunshot wound but survived the attack.

Detective James Metzer of the Cleveland Police Department was assigned to investigate the case. He spoke with Williams and with Nichole Hubbard, who made a statement to police with an attorney present. Within one month of the shooting, Williams was able to identify appellant from a photo array as the man he had argued with on the night in question; he later identified Ru-el Sailor as the “shooter.” Nichole Hubbard stated that she had indeed argued with Williams and had tried to contact her brother, but was only able to reach his voice mail and did not speak to him on the night in question. She also told the detective that Williams threatened her with a gun before she left the scene; however, Williams denied having a gun and no evidence that he was armed was presented.

During the course of his investigation, Det. Metzer learned that Nichole Hubbard actually made seven calls to her brother's cellular phone between 11:57 p.m. and 12:47 a.m. on the night in question, and none of those calls was referred to voice mail. This information was confirmed by cellular phone records obtained from Verizon Wireless and Sprint Communications and introduced into evidence.

Appellant was indicted and tried with Ru-el Sailor and Nichole Hubbard; of the defendants, only Ru-el Sailor testified. Williams and other witnesses to the shooting took the stand. Nichole Hubbard's statement to the police was also admitted as evidence. As to the appellant, the jury returned guilty verdicts on all counts except aggravated murder. At his sentencing hearing, appellant stated that he was with a man named Will on the night of the shooting and that Sailor was not there. However, at a hearing on Sailor's motion for a new trial, appellant testified that he shot Clark in self-defense (a defense never asserted at trial) while accompanied by a man named William Sizemore and that Sailor had nothing to do with the shooting.

(Doc. 14, RX 10, at 2-5; State v. Hubbard, No. 83384, 2004 WL 1944810, at *1-*2 (Ohio Ct. App. Sept. 2, 2004).)

On Jan. 20, 2004, Hubbard filed a notice of appeal, raising thirteen assignments of error, as follows:

1. The trial court erred when it denied the appellant's motion for severance from his sister and co-defendant Nichole Hubbard which was a clear Bruton violation.

2. The trial court erred when it denied the appellant's motion to suppress the identification testimony of Clark Williams.

3. The trial court erred when it allowed the state to present testimony of Ellen Taylor regarding statements allegedly made to her by codefendant Nichole Hubbard implicating appellant and the admission of this testimony was violative of his right to confrontation and right to due process.

4. Appellant was denied due process when the trial court denied the appellant's motion for mistrial when the state had presented belated identification witness testimony during the middle of trial although the appellant had timely filed a motion to suppress identification testimony and a hearing was had on that motion.

5. The trial court erred when it denied the appellant's motion to suppress the identification testimony of state witness Tennita Johnson.

6. The trial court erred when it denied appellant's motion for judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure due to state's failure to present sufficient evidence of guilt for the charge of complicity to commit aggravated murder.

7. The trial court erred when it denied appellant's motion for judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure due to state's failure to present sufficient evidence of guilt for the charge of murder.

8. The trial court erred when it denied appellant's motion for judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure due to state's failure to present sufficient evidence of guilt for the charge of complicity to commit murder.

9. The trial court erred when it denied appellant's motion for judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure due to state's failure to present sufficient evidence of guilt for the charge of kidnapping in counts 5 and 7 of the indictment.

10. The trial court erred when it denied appellant's motion for judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure due to state's failure to present sufficient evidence of guilt for the charge of complicity to commit kidnapping in counts 6 and 18 of the indictment.

11. The trial court erred when it denied appellant's motion for judgment of acquittal pursuant to Rule 29

...