Hunt v. Warden

• Decision Date: 13 December 2016
• Docket Number: Case No. 2:15-cv-2377
• Parties: ANDREW E. HUNT, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

ANDREW E. HUNT, Petitioner,
v.
WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:15-cv-2377

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

December 13, 2016

JUDGE GEORGE C. SMITH
Magistrate Judge King

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 (ECF No. 1), Respondent's Return of Writ (ECF No. 5), Petitioner's Reply (ECF No. 12), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Facts and Procedural History

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

On May 24, 2012, appellant was indicted for one count of murder in violation of R.C. 2903.02 and one count of having a weapon while under disability ("WUD") in violation of R.C. 2923.13. The murder count included specifications for use of a firearm and discharging a firearm from a motor vehicle, as well as a specification alleging appellant was a repeat violent offender ("RVO") based on a 1997 felonious assault conviction. The indicted charges arose out of the May 16, 2012 shooting death of James Daniel Canty. Appellant waived his right to a jury trial on the WUD charge, and the matter proceeded to trial where the following evidence was adduced.

Columbus Police Officer Brian Smith responded to Vida Place shortly before 4:00 a.m., on May 16, 2012, on the report of a

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shooting. When Officer Smith arrived, he saw Canty laying on the ground and a gentleman holding a towel on Canty's neck in an effort to stop the bleeding. A witness told Officer Smith the shooter was in a "Chevrolet Tahoe, silver in color with dark tinted windows." (Tr. 37.) Medics responded and Canty was pronounced dead at the scene.

Testimony was also presented from Alexis Lewis, who, upon her release from jail in January 2012, began residing with Ashley Morrison at 2734 Vida Place. According to Lewis, Canty, also known as "Dan Dan," lived next door to them. At 1:00 a.m. on May 16, 2012, Lewis, Morrison, John McCreary, and Andrea Finley were at 2734 Vida Place, and, according to Lewis, appellant arrived at approximately 2:30 a.m. Lewis described appellant as acting "[o]bnoxious, demanding, kind of like in charge," causing Lewis to ask appellant to leave. (Tr. 74.) Lewis testified appellant left without incident, and Lewis went into the kitchen. Lewis then heard a conversation outside causing her to open the front door. Through the screen door, Lewis saw appellant and Canty in the middle of the street. Lewis testified as follows:

And they talked for a second in the middle of the street. And [appellant] started walking to his truck and [Canty] followed.

And [appellant] got in his truck and rolled the window down. And [Canty] was standing right up next to his truck and they talked for a second. The conversation must have ended. [Canty] turned around to walk away. And [appellant] must have said "Dan" or something. He turned around, and that's when he started shooting him.

Q. What did you see next?

A. [Canty] tried to run away and he fell face first on the ground.

(Tr. 75-76.)

Lewis called 9-1-1, and another neighbor ran out to help Canty. Lewis was interviewed by police on three occasions. The first interview occurred at the scene just after the shooting. At that time, Lewis told police she heard five or six shots and saw a light-colored SUV leaving the scene, but she did not see anything else because she was in the kitchen making a sandwich when the shooting happened. The second interview was at police headquarters at approximately 7:30 a.m. on May 16. At this time, Lewis named appellant as the shooter, provided a physical

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description of him, and selected him out of a photo array. Lewis testified at trial that she was not forthcoming about all the details of the shooting at this time. The third interview also occurred on May 16, and at this interview, Lewis again indicated appellant was the shooter. Lewis's trial testimony was similar to the full description of events she provided police at this third interview. At trial, Lewis testified she lied and was not fully forthcoming with police because she was afraid for her safety and that of her family.

Nathaniel Sims, Jr., testified he was on the couch listening to music in the early morning hours of May 16, 2012 when he heard four gunshots. When he looked out the window, Sims saw the driver of a truck roll up the window and "skirt[ ] out" of the area. (Tr. 450.) Sims described the truck as a 2003 gray Tahoe. After the truck left, Sims testified he ran outside where the victim was laying on the ground bleeding. Therefore, Sims took off his shirt and handed it to another man who was attempting to stop the bleeding.

As a result of the information obtained throughout the morning, an arrest warrant was issued for appellant. Appellant was arrested at his address, 483 South Ogden, at approximately 10:30 a.m. on May 16. Appellant told police he lived at 483 South Ogden with his mother and stepfather. During his interview with police, appellant denied having anything to do with Canty's death.

Columbus Police Detective Glen Siniff testified a search warrant was executed at 483 South Ogden shortly after appellant's arrest. A box containing marijuana and some pills, $9,000 in cash, and several pieces of gold jewelry were found in a bedroom. A 2003 gold Chevrolet Tahoe, titled to appellant, was parked in the back of the residence. Detective Siniff testified that, though the vehicle looked as if it had been cleaned, he noticed a small spot on the driver's side door of what appeared to be blood. The spot was tested, and the vehicle was impounded.

Testing of the spot concluded it was blood. The DNA profile extracted from the blood was consistent with Canty's DNA. Several fingerprints were taken from the vehicle but only two were identified. Three of the six fingerprint lifts taken from the vehicle matched either appellant or a man named Tony Marcum. The remaining fingerprints lifts were not able to be identified. A search of the vehicle revealed a bucket containing cleaning supplies and rags. Additionally, the driver's side visor had several spots that tested presumptive positive for blood but from which no DNA profiles could be extracted.

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Allie Hunt, appellant's mother, testified that, at approximately 11:00 p.m. on May 15, appellant left in a truck to pick up a mattress and box springs, but that he was not driving the Tahoe when he left. Hunt could not recall what time appellant returned, but that he did so to unload the mattress and box springs and then left again to return the truck. Hunt testified the Tahoe was parked in the back of the residence at 1:40 a.m., and she believed appellant was home at that time. Hunt did not see appellant until the next morning at approximately 9:30 a.m. and nothing was out of the ordinary. Hunt also testified the money found in the house belongs to her and her husband. According to Hunt, they had been saving that money over seven years for home repairs and to get the roof fixed. Hunt also testified the marijuana and pills found at the house belonged to her husband.

The jury returned a verdict of guilty on the murder charge, as well as the specifications for use of a firearm and discharging a firearm from a motor vehicle. Thereafter, the trial court found appellant guilty of WUD and the RVO specification. A sentencing hearing was held, and appellant was sentenced to an aggregate prison term of 31 years to life. A judgment reflecting the same was filed on November 16, 2012.

II. ASSIGNMENTS OF ERROR

In a timely appeal, appellant presents seven assignments of error for our consideration:

[I.] Misconduct and overreaching by the prosecutor deprived Defendant-Appellant of a fundamentally fair trial and reliable jury verdict in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution.

[II.] The trial court committed reversible error when it denied Defendant-Appellant's motion to suppress evidence that was seized from his motor vehicle in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution.

[III] The cumulative effect of the trial court's erroneous evidentiary and procedural rulings deprived Defendant-Appellant of his due process right to a fundamentally fair jury trial under the Sixth and Fourteenth Amendments to the U.S. Constitution.

[IV.] The trial court's reception of new evidence to support the prior conviction elements of the weapon under disability count and

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the repeat violent offender specification after the trial court already terminated violated [sic] Defendant-Appellant's rights under the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the United States Constitution.

[V.] Defendant-Appellant's convictions for murder and having a weapon under disability are against the manifest weight of the evidence.

[VI.] The jury's affirmative finding that Defendant-Appellant committed the offense of murder by discharging a firearm from a motor vehic[l]e is not supported by evidence sufficient to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

[VII.] Defendant-Appellant was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

State v. Hunt, No. 12AP-103, 2013 WL 6406316, at *1-3 (Ohio App. 10^th Dist. Dec. 5, 2013). On December 5, 2013, the appellate court affirmed the judgment of the trial court. Id. Petitioner filed a motion for reconsideration and to certify conflict. (ECF 5-1, PageID# 291.) On January 30, 2014, the appellate court denied Petitioner's motions. Id. (PageID# 332.) On June 11, 2014, the Ohio Supreme Court declined to accept jurisdiction of...