McNeill v. Bagley, Case No. 1:02 CV 1645

CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
Writing for the CourtJUDGE DAN AARON POLSTER
PartiesFreddie McNeill, Jr., Petitioner, v. Margaret Bagley, Warden, Respondent.
Decision Date26 August 2019
Docket NumberCase No. 1:02 CV 1645

Freddie McNeill, Jr., Petitioner,
v.
Margaret Bagley, Warden, Respondent.

Case No. 1:02 CV 1645

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

August 26, 2019


JUDGE DAN AARON POLSTER

MEMORANDUM OF OPINION AND ORDER

INTRODUCTION

Petitioner Freddie McNeill, Jr., was convicted and sentenced to death in an Ohio state court for the aggravated murder of Blake Fulton. McNeill has now filed a petition and amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentence. (Docs. 21, 137.)1 Respondent Warden Margaret Bagley has filed a return of writ to the amended petition. (Doc. 141.) McNeill has filed an amended traverse. (Doc. 144.) And Respondent has filed a sur-reply. (Doc. 145.) For the reasons stated below, the Court denies McNeill's amended petition.

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FACTUAL HISTORY

The Ohio Supreme Court set forth the following facts underlying McNeill's convictions:

On the evening of May 13, 1994, Blake Fulton and Robert Rushinsky drove about the city of Lorain seeking to purchase crack cocaine. Seeing several men they believed to be crack dealers at the corner of Massachusetts Avenue and G Street, the two stopped. As was customary, the first dealer to the car, McNeill, got the sale.

Fulton and Rushinsky knew McNeill from prior drug transactions. Rushinsky, who was riding in the front passenger seat of the two-door car, let McNeill into the back. As McNeill directed, Fulton drove south on Massachusetts Avenue and headed for McNeill's residence, where McNeill stated he kept the crack cocaine. As they drove, McNeill asked Fulton for twenty dollars. Fulton replied: "No. * * * You know how it works. I want to see [the crack] first." Fulton and McNeill continued to argue about the money. When the trio reached McNeill's house, Fulton stopped the car. McNeill produced a gun, saying, "This is a stickup," and "I want the money." Fulton jumped from the car and ordered McNeill out. As Rushinsky leaned forward and opened his door, McNeill grabbed the keys from the ignition and jumped out.

McNeill aimed his gun at Rushinsky and asked if he had any money. Rushinsky replied he had none. McNeill then pointed the gun at Fulton, saying, "You don't think this gun's real?" and "You don't think this thing's loaded?" Fulton told McNeill to return his keys. After further argument, McNeill walked away. Fulton, who was a locksmith, got into his car and attempted to start it using his locksmith's tools.

While Fulton was trying to start the car, McNeill returned. McNeill put his gun to Fulton's head, said, "Played me for a bitch," and shot Fulton. Fulton died several hours later.

State v. McNeill, 83 Ohio St. 3d 438, 438-39 (Ohio 1998).

PROCEDURAL BACKGROUND

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A. State-Court Proceedings

1. Trial Court

In May 1994, the Lorain County Grand Jury indicted McNeill for aggravated murder under Ohio Rev. Code § 2903.01(B) with a firearm specification and a death penalty specification that the murder occurred in the course of an aggravated robbery. (Doc. 116-1 at 14.)2 McNeill, represented by Joseph Grunda and Robert Nagy, entered pleas of not guilty to all charges. (Id. at 19.)

McNeill's trial began on April 10, 1995. (See Doc. 117-1 at 63.) He was still represented by Attorneys Grunda and Nagy. (See id.) On April 14, 1995, the jury convicted McNeill of aggravated murder and both specifications. (Doc. 116-1 at 184-85.) The penalty phase of the trial began on May 1, 1995, and on May 3, 1995, the jury recommended that McNeill be sentenced to death. (Id. at 178-79.) On May 12, 1995, the trial court accepted the jury's recommendation and imposed a death sentence. (See id. at 184-85.)

2. Direct Appeal

On June 21, 1995, McNeill, represented by new counsel David Bodiker, Kevin Fahey, and Joseph Wilhelm of the Office of the Ohio Public Defender, timely appealed his convictions and sentence to the Ninth Judicial District Court of Appeals. (Id. at 209-10.) In his appellate brief, he raised sixteen assignments of error, stated as follows:

1. Mr. McNeill was wrongfully convicted of violating Ohio Rev. Code Ann. § 2903.01(B) (Anderson 1996) and of the specification of

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violating O.R.C. § 2929.04(A)(7), in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9 and 16 of the Ohio Constitution.

2. There was insufficient evidence of aggravated robbery to support the conviction, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Article I, §§ 9 and 16 of the Ohio Constitution, and Ohio Rev. Code Ann. §§ 2901.05(A), 2903.01(B), and 2929.04(A)(7) (Anderson 1996).

3. Appellant was denied his rights to a fair trial, to due process and to a reliable death sentence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when the State presented and the trial court admitted prejudicial "other acts" evidence.

4. State misconduct during the trial denied Mr. McNeill his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well Article I, §§ 2, 9, 10, and 16 of the Ohio Constitution.

5. The trial court violated Appellant McNeill's rights to the assistance of counsel and to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when it denied Appellant's motion to dismiss trial counsel.

6. Appellant McNeill's right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution was violated.

7. The trial court erred when it ruled that [redacted names] were competent to testify at the trial phase. This error violated Appellant McNeill's rights to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution, to due process under the Fifth and Fourteenth Amendments to the United States Constitution and to a reliable capital sentencing determination under the Eighth and Fourteenth Amendments to the United States Constitution.

8. The trial court erred when it death-qualified Appellant McNeill's jury. The death qualification of Appellant's jury violated his right to a fair and impartial sentencing jury as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Appellant's right to a reliable capital sentencing determination under the Eighth and Fourteenth Amendments to the United States

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Constitution.

9. The trial court erred to Appellant McNeill's prejudice because it removed for cause jurors with concerns about capital punishment under an incorrect standard. Appellant's right to due process under the Fourteenth Amendment to the United States Constitution was violated.

10. Mr. McNeill's death sentence is in violation of Ohio Rev. Code Ann. § 2929.05(A) (Anderson 1996), as well as the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Secs. 9 and 16 of the Ohio Constitution, in that aggravation does not outweigh mitigation and the death sentence is disproportionate.

11. Appellant McNeill's right against cruel and unusual punishment under the Eighth and Fourteenth Amendments and his right to due process under the Fifth and Fourteenth Amendments were violated by the trial court's erroneous review of this death sentence pursuant to Ohio Rev. Code Ann. § 2929.03(F) (Anderson 1993).

12. Ohio Rev. Code Ann. § 2929.03(D)(1) (Anderson 1993 & Supp. 1995) and Ohio Rev. Code Ann. § 2929.04 are unconstitutionally vague in violation of Appellant McNeill's right against cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution.

13. The definition of mitigating factors under Ohio Rev. Code Ann. § 2929.04(B)(7) (Anderson 1996) is misleading and results in unreliable capital sentencing in violation of the Eighth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 9 and 16 of the Ohio Constitution.

14. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. O.R.C. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio's statutory provisions governing the imposition of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.

15. The trial court erred when it charged the jury on the statutory definition of reasonable doubt in Ohio Rev. Code Ann. § 2901.05 (Anderson 1993).

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16. The trial court erred when it denied Appellant McNeill's challenge to the jury panel on the ground of under representation of African-Americans in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

(Id. at 325-31 (capitalization altered and citations to trial transcript omitted).) The State filed a responsive brief. (Id. at 546-601.)

The appellate court affirmed McNeill's convictions and sentence on April 1, 1997. State v. McNeill, No. 95CA006158, 1997 WL 186348 (Ohio Ct. App. Apr. 1, 1997). McNeill, now represented by Attorneys Annette Powers and Renee Green, filed a timely notice of appeal to the Ohio Supreme Court. (Doc. 116-1 at 668-69.) In his brief, he presented the following seventeen propositions of law, stated as:

1. Aggravated murder is not committed "while" the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit aggravated robbery, under R.C. 2903.10(B) and 2929.04(A)(7), when the two acts are not part of the same transaction.

2. A conviction of the specification of having committed aggravated murder while committing or attempting aggravated robbery, R.C. 2929.04(A)(7), may not stand when as a matter of law, there is insufficient evidence to support it.

3. It is prejudicial error to admit evidence of other
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