McRae v. Jackson-Mitchell

• Decision Date: 30 September 2020
• Docket Number: Case No. 3:20-cv-168
• Parties: TROY McRAE, Petitioner, v. WANZA JACKSON-MITCHELL, Warden, Warren Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

TROY McRAE, Petitioner, v. WANZA JACKSON-MITCHELL, Warden, Warren Correctional Institution, Respondent.

Case No. 3:20-cv-168

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

September 30, 2020

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Troy McRae pursuant to 28 U.S.C. § 2254, is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner's Reply (ECF No. 17). Upon filing, Magistrate Judge Karen Litkovitz transferred the case to the Dayton location of Court because Petitioner's conviction occurred in Shelby County, Ohio, a county served by the Dayton judges. S. D. Ohio Civ. R. 82.1(b), (f).

Litigation History

On March 30, 2017, McRae was indicted by a Shelby County, Ohio, grand jury on one count of aggravated murder with a repeat violent offender specification (Indictment, State Court Record, ECF No. 10, Ex. 1). He was convicted as charged after jury trial and sentenced to life imprisonment and a consecutive ten years on the specification. Id. at Ex. 4. He appealed to the Ohio Court of Appeals for the Third Judicial District which affirmed the conviction and sentence. Id. at Ex. 8, reported at State v. McRae, 2018-Ohio-3435 (Ohio App. 3d Dist., Aug 27, 2018), appellate jurisdiction declined, 2018-Ohio-5209 (Dec. 26, 2018).

On November 26, 2018, McRae filed a pro se Application to Reopen his appeal to litigate a claim of ineffective assistance of appellate counsel (State Court Record, ECF No. 10, Ex. 13). The Third District denied reopening. Id. at Ex. 15, appellate jurisdiction declined, Id. at Ex. 19.

Petitioner then filed the instant case, pleading three grounds for relief:

Ground One: Petitioner['s] trial counsel rendered ineffective assistance of counsel in violation of Petitioner constitutional rights.

Supporting Facts: In support of this Ground for Relief, Petitioner assert he was deprived effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution when trial counsel:

a) Failed to file a Notice of Alibi and call Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, to testify on Petitioner's behalf regarding his whereabouts during the time of the incident surrounding the victim's death.

13. Petitioner made his trial counsel aware of Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, as witnesses who could testify on his behalf as to his whereabouts during the time of the murder.

14. Trial counsel being made privy to potential alibi witnesses, failed to subpoena said witnesses and failed altogether to file a Notice of Alibi pursuant to Ohio Criminal Rule 12.1, to have the aforementioned potential alibi witnesses testify on behalf of Petitioner to establish where he was during the time of the incident surround the death of the victim.

15. During pretrial discovery, the State of Ohio furnished the names of Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, to testify that Petitioner was involved and/or committed the crime which led to the death of the victim in this matter.a. Deficient Performance

16. Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v Washington, 466 U.S. 668, 690-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

17. ln the matter before this Court, it is unclear rather Petitioner's trial counsel performed any investigation at all to make a decision to file a notice of alibi pursuant to Ohio Criminal Rule 12.1 to include Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, as potential alibi witnesses and calling these witnesses to testify on behalf of Petitioner.

18. What is evident from the record is that Petitioner maintained his innocence and trial counsel proceeded to trial by utilizing the defense that Petitioner was not guilty and in fact innocent of the charges because he was not at the scene of the crime.

19. Given that Petitioner's trial counsel proceeded to trial utilizing the defense that Petitioner was not guilty and was not present for the crime, not filing a Notice of Alibi pursuant to Ohio Criminal Rule 12. 1 to include the names of potential alibi witnesses Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, and not subpoenaing these witnesses was objectively unreasonable and constitutes deficient performance.

20. The aforementioned witnesses would have bolstered and gave credibility to Petitioner's plausible defense that he was not present during the time the crime occurred.

b. Prejudice

21. Trial counsel failing to file a Notice of Alibi pursuant to Ohio Criminal Rule 12.1 to include the names of Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, and failing to subpoena the same potential alibi witnesses deprived Petitioner of an adequate defense before the jury.

22. Specifically, the State Appellate Court found that the State of Ohio presented at trial:

McRae's step-mother testified that the week immediately following the murder, she saw an injury to McRae's lefthand. Tr. 445. The coroner testified that the injuries of the victim came from a left-handed assailant. Tr. 464, 467. Aisha Martin ("Martin'') testified that McRae was her boyfriend and lived with her. Tr. 542. The Thursday after the murder, he had her take him to Lima and dropped him off at the McDonalds. Tr. 543.

McRae had told her that he got into a "tussle" with the victim and had stabbed the victim, killing him. Tr. 544. Martin also testified that McRae was left handed and after the day of the murder she observed he had an injury to his left hand. Tr. 545. McRae told Martin that he was injured while he was stabbing the victim. Tr. 545. Timothy Augsback ("Augsback") testified that he is a forensic scientist in the DNA section of BCI [Bureau of Criminal Investigation]. Tr. 580-81. Augsback testified that the blood found on the door knob of the victim's home likely came from McRae. Tr. 589. The blood found on the kitchen sink of the victim's home also likely came from McRae. Tr. 591. The blood found on the victim's medicine cabinet was also consistent with that of McRae. Tr. 592. Given the testimony of Martin and Augsback indicating that McRae was likely present at the scene, counsel for McRae may have determined that the alibi testimony was not credible and not helpful to McRae's case. The record is devoid of any evidence to indicate that it would have changed the outcome of the case.

23. Given that the State of Ohio could only produce testimony that Petitioner allegedly confessed to the instant crime and could not present any eyewitness evidence that Petitioner actually committed the crime, trial counsel failure to file a Notice of Alibi or subpoena Mary Winemiller, Brandon Williams, William Williams, and Mason Brown, to testify on Petitioner's behalf as to his whereabouts prejudiced Petitioner's defense because it allowed the jury to only rely on Petitioner's claim of not being present for the crime from the cross-examinations and arguments made by trial counsel.

(Petition, ECF No. 1, PageID 7-12.)

Ground Two: Petitioner was denied his Sixth and Fourteenth Amendment right under the U.S. Constitutional to a speedy trial.

Supporting Facts: In this Ground for Relief, Petitioner assert that he was denied his Sixth and Fourteenth Amendment Constitutional right to a Speedy Trial. Petitioner was arrested on March 22, 2017,and held in the Shelby County Jail awaiting trial until September 11, 2017 when trial commenced.

(Petition, ECF No. 1, PageID 24-26.)

Ground Three: Petitioner was deprived effective assistance of appellate counsel when said counsel failed to raise as an assignment of error: The State of Ohio deprived Petitioner of the right to adequate notice when charging Petitioner with Aggravated Murder.

Supporting Facts:

62. After the Third Appellate District Court of Appeals affirmed the conviction and sentence of the trial court, Petitioner submitted a timely Application for Reopening pursuant Ohio Appellate Rule 26(8), wherein he fairly presented and gave the State Court's [sic] a full opportunity to hear the claim presented in this ground for relief.

63. Petitioner was indicted by a Shelby County Grand Jury for the offense of Aggravated Murder in violation of R.C. 2903.0l(B). The aforementioned offense requires a predicate offense in order to properly charge Aggravated Murder in violation of R.C. 2903.0l(B). See State v. Harris, 2008-Ohio-6168, at *P60, 2008 Ohio App. LEXIS 55139.

64. Petitioner's indictment failed to charge a predicate offense under Ohio law, thereby depriving Petitioner of adequate notice of the offense for which he was being charged.

65. Petitioner was on direct appeal and when a state guarantees criminal defendants the right to appellate review, the right to effective assistance of counsel extends beyond the state court trial to the first appeal as of right in accordance with the Due Process and Equal Protection Clauses of the United States Constitution. Evitts v. Lucey, 469 U.S. 387, 392-93, 105 S. Ct. 830, 83 L. Ed. 2d 821 (I985)(citing Griffin v. Illinois,351 U.S. 12, 18-20, 76 S. Ct 585, 100 L. Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 356-57, 83 S. Ct 814, 9 L. Ed. 2d 81 I (1963).

66. In light of the foregoing facts, appellate counsel deprived Petitioner [of] effective representation in violation of the Sixth and Fourteenth Amendments of the United States Constitution by failing to raise the omitted "inadequate notice" claim on Petitioner's direct appeal.

(Petition, ECF No. 1, PageID 33-35.)

Analysis

Ground One: Ineffective...