Minor v. Warden, Lebanon Corr. Inst.

• Decision Date: 26 March 2014
• Docket Number: Case No. 1:08-cv-583
• Parties: CHAZ MINOR, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CHAZ MINOR, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 1:08-cv-583

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

March 26, 2014

District Judge S. Arthur Spiegel

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. No. 40). On the Court's Order (Doc. No. 41), Respondent has filed an Amended Answer (Doc. No. 43) and Petitioner has filed an Amended Traverse (Doc. No. 44). The case is accordingly ripe for decision.

Background Facts:

On direct appeal from the conviction in this case, the First District Court of Appeals found relevant background facts from the trial testimony as follows:

[*P2] On April 1, 2005, Kevin Berry was shot multiple times while selling drugs in the Fay Apartments complex in Cincinnati. According to the state, Minor and his co-defendant, Larry Lewis, shot Berry because he was selling drugs in their area. Minor and Lewis were indicted for murder with firearm specifications. The case was tried before a jury.

[*P3] At trial, Geronimo Johnson testified that, on the night of theshooting, he had seen Berry, Lewis, and a third, unidentified man arguing. He stated that he had then heard gunshots from two different guns. After hearing the shots, Johnson left the apartment complex without discussing what he had seen. Johnson testified that he had not intended to discuss the shooting with police officers, and that he had done so several days later only after being scared by two men while he was reporting to his probation officer. When asked by the prosecutor, Johnson stated that, since he had spoken with the police about the shootings, he had been threatened. On cross-examination, Johnson acknowledged that he had first told police that he saw four people arguing that night--Berry, Lewis, a man named Tremus, and an unidentified man. But at trial, he insisted that Tremus had not been involved in the argument that night.

[*P4] Jamita Weaver testified that, on April 1, she had overheard Tremus and Lewis saying that they did not like that Berry had been selling drugs in their area. Weaver stated that, on the evening of April 1, she had approached Berry to buy some marijuana from him. According to Weaver, while she was talking to Berry, Lewis and Minor had walked by. Weaver also stated that Minor had been walking with a limp, which indicated to her that he had a long gun down his pants. According to Weaver, Lewis and Minor had approached her and Berry, and Minor had asked her why she was buying from Berry. Lewis and Minor had begun arguing with Berry about "stealing licks" from them. Weaver saw both Lewis and Minor pull out guns. Lewis's was a handgun, and Minor's was a long gun. She stated that Berry had tried to reach for his gun, but had not had time. Before she turned to run away, Weaver had seen Minor shoot Berry.

[*P5] Weaver testified that, after the shooting, her brother, Dante Graves, and Minor had come to her apartment, but that she had refused to let them in. She stated that she had seen Minor give a long gun to Graves after the shooting.

[*P6] Weaver did not immediately speak with police about what she had seen because she was afraid to come forward. According to Weaver, she decided to speak with the police only after she had gotten into a fight with Graves. Weaver stated that Graves had held a gun to her head. Weaver was angry and decided to speak to the police about Berry's shooting. When asked by the prosecutor, Weaver stated that she was scared for her and her children's safety.

[*P7] Hasson Graham had been incarcerated with Lewis. He told Detective William Hilbert that Lewis had admitted to shootingBerry and had said that he was going to implicate Minor's brother in the shooting.

[*P8] Detective Hilbert was contacted by one of Minor's family members and was told that Minor wanted to discuss Berry's shooting with the police. According to Hilbert, Minor stated that he was at his girlfriend's house with his brother, Diamond Johnson, when the shooting occurred.

[*P9] In support of his alibi, Minor offered the testimony of his girlfriend, Kimyatta Halbert, who testified that, on the night of the shooting, Minor was playing video games with a friend in her apartment. Minor's mother testified that her phone bill indicated that Minor was using his phone at the time that Berry was shot.

State v. Minor, 2007-Ohio-312, 2007 Ohio App. LEXIS 287 (1^st Dist. Jan. 26, 2007).

Procedural History

Minor was indicted by the Hamilton County Grand Jury on August 26, 2005, on one count of murder with four firearm specifications. He was convicted of the murder and two specifications and sentenced to fifteen years to life with three years consecutive for the firearm specification. He appealed to the First District Court of Appeals, pleading seven assignments of error, but the conviction was affirmed. State v. Minor, supra. The Ohio Supreme Court declined jurisdiction over a further appeal on June 6, 2007. State v. Minor, 114 Ohio St. 3d 1412 (2007).

On August 28, 2008, Minor filed his original Petition for Writ of Habeas Corpus in this Court, pleading the following single ground for relief:

Ground One: Prosecutorial misconduct prevented Mr. Minor from having a fair trial in contravention of his due process rights.

Factual Basis:

1. The prosecution, in closing, repeatedly stated that Mr. Minor and all of the defense witnesses were lying.

2. The prosecutor, in rebuttal to defense's closing, engaged in an ad hominem attack against Mr. Minor's attorney by belittling his closing argument by calling him a "CSI Investigator."

3. The prosecutor misrepresented the testimony of the only witness against Mr. Minor by stating that she had custody of her children. Ms. Weaver had testified that children's services had been contacted about her children and that she had given custody of her children to her mother. That information had been introduced to show her bias, since she only testified because she was "mad" regarding children's services being contacted and the resulting fight she had with her brother.

4. As his final words before the court began its jury instructions, the prosecutor explained the standard for proof beyond a reasonable doubt and then unequivocally stated that the State had proven beyond a reasonable doubt that Mr. Minor was responsible for the death of Kevin Berry.

5. The jury had difficulty weighing the credibility of Ms. Weaver against the credibility of the defense witnesses, since they questioned the court multiple times regarding Mr. Minor's case and ultimately received transcripts of Ms. Weaver's testimony along with the testimony of defense and impeachment witnesses.

(Petition, Doc. No. 2.)

On November 5, 2009, Magistrate Judge Timothy Hogan recommended that Minor's Motion to Amend to add a Brady claim be postponed until Minor had exhausted that claim in the state courts (Doc. No. 29). Respondent had raised a statute of limitations objection to the amendment and Minor had responded by claiming the benefit of 28 U.S.C. § 2244(d)(1)(B) and (D) and of the actual innocence exception to the statute of limitations recognized in Souter v. Jones, 395 F.3d 577 (6^th Cir. 2005)(Doc. No. 23, p. 4, n.1). Judge Hogan recommended rejecting the § 2244(d)(1)(B) starting date for the statute, but recommended staying a decision on the other two limitations-avoidance claims until after exhaustion in the state courts (Report and Recommendation, Doc. No. 29). The Report and Recommendation was adopted by judge Spiegel without objection by either party (Order, Doc. No. 30).

After the stay was granted, Minor filed a motion for leave to file a delayed motion for new trial. In the Motion, Minor asserted both a Brady violation in the State's having failed to advise Minor that Jamita Weaver's mother, Vel Barnes, and her brother, Donte Graves, "repeatedly told Cincinnati Police Jamita was not to be trusted (Exhibits A, C, D and F)." (Doc. No. 32-1, PageID 1269.) Indeed, it is claimed that "[d]uring separate interviews, both told Cincinnati police detectives [Jennider] Luke and [William] Hilbert Jamita had falsely accused a man of rape in Springfield Township. After discovering her untruthfulness, Springfield Township prosecuted her for filing a false police report. (Exhibits A, C and D)." Id.

To establish his diligence in bringing the Motion, Minor asserted that

Witness affidavits were discovered during the time the habeas petition was pending. Vel Barnes and Donte Graves were not located until April 2009. . . . The third witness, John Huff, was not located until April 6, 2009 with evidence of Mr. Minor's innocence. (Exhibit B). The fourth witness, Charay Hicks, was not located until November 19, 2009. She supplied an affidavit that she witnessed the shooting from 2405 Nottingham while she was babysitting on behalf of Ms. Eugiene Sander and that Chaz Minor was not involved. She could not come forward until the true shooter, known for being violent and robbing and shooting people, was no longer a threat. (Exhibit B).

Id.

Donte¹ Graves' Affidavit was signed June 8, 2009. Id. at PageID 1276. He claims he was not in Ohio from March 17, 2005, until April 4, 2005. Id. Upon returning, he got in a fight with his sister Jamita Weaver and struck her. Id. He claims that on January 4, 2006, Jamita admitted to him that she lied about the shooting to get back at him and his friend, Chaz Minor, for the beating he gave her in April. Id. He swears that at some undisclosed date he spoke to Cincinnati police "and told them Jamita was lying." He claims "I knew Chaz Minor was not involved," but does not say how he knows that, given that he was allegedly in Indianapolis whenit happened. Id. He did not come forward "because I was not involved in the offense, but "was afraid the police would believe [he] was involved because Ms. Weaver was saying I was involved." Id. He states that...