Neil v. Warden, Noble Corr. Inst.

• Decision Date: 30 January 2020
• Docket Number: CASE NO. 2:18-CV-1721
• Parties: MIGUEL NEIL, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MIGUEL NEIL, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:18-CV-1721

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

January 30, 2020

JUDGE JAMES L. GRAHAM

Chief Magistrate Elizabeth P. Deavers

ORDER and REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Court on the Petition, as amended, Respondent's Return of Writ and supplemental response, Petitioner's Traverse, and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that this action be DISMISSED.

Petitioner's unopposed Motions for Leave to Supplement the Record and Traverse Brief (ECF Nos. 30, 31) are GRANTED.

I. Facts and Procedural History

Petitioner challenges his October 31, 2014 convictions after a jury trial in the Franklin County Court of Common Pleas on 30 counts of robbery and 6 counts of kidnapping. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 2} The charges against appellant arose from a series of robberies that occurred in 2011 and two robberies that occurred in 2012. On November 15, 2012, immediately following the final robbery, Columbus police arrested appellant. Appellant was indicted in common pleas court case No. 12CR-5963 on 4 counts of robbery and 6 counts of kidnapping arising from the 2012 robberies. He also was indicted in common pleas court case No. 13CR-4174 on 26 counts of robbery and 1 count of kidnapping arising from 13 separate robberies committed in 2011.

Pursuant to motion filed by plaintiff-appellee, State of Ohio, the trial court joined the indictments for a single trial. Appellant moved to sever the indictments but the trial court denied the motion. Appellant also moved to suppress certain evidence but the trial court denied that motion. The charges were tried to a jury during a six-day trial beginning September 24, 2014, and ending October 1, 2014.

A. Robberies Committed in 2011

{¶ 3} The state presented witness testimony, as well as video and photographic evidence, related to the 13 robberies the state alleged appellant committed in 2011.

{¶ 4} On March 23, 2011, a Subway restaurant at 3626 Gender Road was robbed. An employee testified that at approximately 9:30 p.m., a man dressed in all black and brandishing a small handgun entered the restaurant demanding money. The robber wore a hood and a mask covering his face; the employee could only see from the bridge of the robber's nose up because the lower portion of the robber's face was covered by the mask. The robber ordered the employee to get on the floor and not to look at him. The robber then reached over the counter into the cash register, which the employee had opened. The robber did not jump over the counter or step into the area behind the counter. The employee testified that the robber was a dark-skinned African-American man with a normal build, approximately 5'10" to 6" tall, weighing 180 to 220 pounds. The state also introduced photos taken from the restaurant's security camera. In the photos, the robber, who is wearing dark clothing, including a hood and mask, dark shoes, and dark gloves with white markings or letters, can be seen pointing a handgun, which is held in his left hand.

{¶ 5} On April 18, 2011, a Subway restaurant at 354 West Third Avenue was robbed. A customer who was present that evening testified that a man entered and announced that he was robbing the restaurant. The robber then ordered the customer and employees to get down on the floor. When the customer did not move, the robber pushed him down to the floor. The robber then took two Subway employees into the area behind the cash register. The customer testified that the robber was an African-American man with a medium-to-dark complexion and a deep voice. He stated that the robber wore dark gloves and a very dark blue hooded sweatshirt with the drawstring pulled so that only part of his face and mouth were visible. The customer testified that the robber was medium height and "had a potbelly or close to it." (Sept. 25, 2014 Tr. at 138.) One of the two employees who were present testified that the robber entered the store holding a small gun, pointed the gun at the back of the customer's head, and told the employee to go to the front of the store and get the money. She testified that the robber was wearing dark colors and she could only see his eyes. She stated that the robber made them all get down on the floor, then took the money from the register and left. A video of the robbery from the restaurant's surveillance system was played for the jury, with the employee narrating the events depicted. The employee pointed out that the robber held the gun in his left hand. The second employee who was present during the robbery also testified. She indicated that the robber was wearing gloves and carrying a handgun,and that he used his right hand to take money out of the cash register. She said that the robber was an African-American male with a deep voice and that she believed he was approximately 5'8" tall.

{¶ 6} On May 8, 2011, a Tim Horton's restaurant at 6780 East Main Street was robbed. An employee of the restaurant testified that the robbery occurred near the end of his shift, around 9:10 p.m. He testified that the robber was an African-American male who wore a black ski mask, black hooded sweatshirt, black pants, and brown or black gloves, and carried a small handgun in his left hand. He testified that the robber entered the restaurant, took another employee at gunpoint, and went to the drive-through area where he was working. The robber then ordered him to open the register and get on the ground. After removing the money from the drive-through register, the robber took the other employee back to the front of the restaurant, ordered him to open the register, and then ordered him to get on the ground. A video from the restaurant's surveillance system was played for the jury. In the video, the robber could be seen wearing dark gloves with white markings or letters. The video also depicted the robber walking behind the counter and removing money from the cash register with his right hand while holding a handgun in his left hand.

{¶ 7} On June 28, 2011, a Tim Horton's restaurant at the corner of Sawmill Road and Hard Road was robbed. An employee testified that just before the restaurant closed, at about 10:58 p.m., an African-American man entered the store and got past the counter. The robber had a gun in his left hand; he pointed it at the employee and ordered him to open the cash registers. The employee opened the cash registers and then got on the ground. The robber used his right hand to empty the cash registers. The robber wore dark clothing and black gloves with white markings or letters. The employee testified that he could only see from the top of the robber's nose to his eyebrows because the lower part of his face was covered. He stated that the robber was dark skinned, approximately 5'11" to 6'0" tall and "had a little bit of a build to him." (Sept. 25, 2014 Tr. at 194.) A second employee, who was also present during the robbery, testified that the robber walked in carrying a small handgun and demanded money. The robber ordered the two employees to get down on the floor and then made one of them open the cash registers. The second employee testified that he tried to press an alarm button, but the robber came over, pointed the gun at him and told him to stay down. A video from the restaurant's surveillance system was also played for the jury.

{¶ 8} On August 10, 2011, a Subway restaurant at 7558 Worthington-Galena Road was robbed. An employee of the restaurant testified that around 9:30 p.m., as she was preparing to close the restaurant, a man entered and ordered her to give him all the money. The robber jumped over the counter and forced her to open the cash register; he then kneed her in the back and ordered her to get on the ground. The employee testified that the robber wore black clothing, including a black mask, hooded sweatshirt, pants, gloves, and shoes. A video from the restaurant's surveillance system was played for the jury. In the video, the robber can be seenwearing black gloves with white markings or letters and holding a gun in his left hand while reaching into the cash register with his right hand. The employee testified that the robber was an African-American male who was taller than she was and indicated that her height was 5'6". She further testified that she was scared during the incident and that shortly thereafter she quit her job because she could not handle working there any longer.

{¶ 9} On the evening of September 11, 2011, a Tim Horton's restaurant at 8333 North High Street was robbed. The employee who was present during the robbery was unavailable at trial due to military service, but the state called the owner/operator of the store as a witness. He testified that he watched the store's surveillance video after the robbery. The surveillance video was played for the jury. In the video, the robber can be seen entering the restaurant and jumping over the counter. The robber wore dark clothing and black gloves with white markings or letters. In the video, a restaurant employee can be seen getting on the floor. The video shows the robber holding a gun in his left hand and using his right hand to reach into the cash register. The state also presented part of the video from earlier that same evening, when an individual appeared to enter the restaurant, go to the restroom and then leave without purchasing anything. That individual appeared to be holding his hands up to shield his face as he walked through the restaurant. The store owner testified that approximately 15 minutes passed between that individual entering and leaving the restaurant and the robbery occurring.

{¶ 10} On September 13, 2011, a BP gas

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