Oteng v. Warden

• Decision Date: 12 June 2018
• Docket Number: CASE NO. 2:16-CV-1181
• Parties: DENNIS OTENG, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DENNIS OTENG, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:16-CV-1181

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

June 12, 2018

JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

I. Facts and Procedural History

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

In the early morning hours of January 5, 2013, Kingsley Owusu was shot and killed in the parking lot of the Filipino Center on Westerville Road in Columbus, Ohio. The victim's best friend, Benjamin Appiah, described the events that lead to Owusu's death as follows. In the late evening of January 4, 2013, Owusu and his friend Gabe, also known as G-money, picked him up at home and traveled to Lounge 62 in Westerville. When they arrived at Lounge 62, they ran into a friend by the name of David Aseidu who was at the lounge with his friend Andrea d'Almeida. Appiah testified that he and all these other individuals hale from the West African nation of Ghana. He described the Ghanaian community in

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Columbus as a fairly tight knit group, and he stated that most members of the community know each other.

At Aseidu's suggestion, the group of five left Lounge 62 and headed to the Filipino Center to attend a New Year's party co-hosted by Appiah's former girlfriend, Alexis Wellington, and her best friend, Helen Mamo. According to Appiah, he and Wellington had dated "on and off" for approximately one and one-half years prior to that time. (Tr. 335.) Appiah was also aware that appellant was the father of Wellington's six-year old daughter, Michelle.

When they arrived at the party, G-money parked his vehicle at the back of the parking lot. Aseidu, who was traveling with d'Almeida, parked their vehicle closer to the main entrance of the Filipino Center. Appiah testified that he exited the vehicle and began walking toward the main entrance, just behind Owusu and G-money. As G-money and Owusu crossed the parking lot, a man by the name of Yaw Boayke confronted Owusu and began yelling at him in an "angry tone." (Tr. 353.) G-money stepped between the two and then struck Boayke in the face with his forehead. The two men fell to the ground wrestling before Appiah was able to pull G-money off of Boayke.

When Boayke returned to the Filipino Center, he was bleeding from the mouth, and he told Mamo that G-money had head-butted him. By this time, Appiah had entered the Filipino Center to check out the party, while G-money and Owusu waited outside. Appiah then saw appellant and "his crew" of four or five men rush past him toward the parking lot. (Tr. 371.) Appiah recognized a man he knew as Daniel, also known as D.J., and another man he knew as Stevenson following appellant out the main entrance.

At that point, Appiah went out to the parking lot where he saw appellant approaching Owusu with a handgun raised and pointed at him. Appiah got between Owusu and appellant in an effort to diffuse the situation. When he turned away from appellant to face Owusu, he saw that Owusu was holding a small handgun. Appiah pleaded with his friend to give him the gun. He told Owusu "[l]et's just leave the scene." (Tr. 370.) According to Appiah, Owusu handed him the gun.

At that moment, Appiah heard a gun shot ring out behind him, and he began running toward the main entrance of the Filipino Center to get away. When he reached the entrance, he realized Owusu was not with him. Concerned for his friend, Appiah turned to head back outside, but he was momentarily delayed by a security guard.

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When Appiah made it outside, he saw appellant and Owusu facing one another about arms length apart with appellant pointing a handgun at Owusu. Appiah testified that he was standing about ten feet away from the two men with a clear view when he saw appellant fire a shot at Owusu.

According to Appiah, the shot struck Osuwu in the upper body, and he immediately fell to the ground. Appellant then rushed over to Owusu and began kicking him in the head. When appellant broke off his assault and ran, Appiah tried to fire a shot from Owusu's gun, but it jammed. Appiah ejected two live shells from the gun and then began running after appellant, shooting the gun in the air as appellant fled the parking lot in his black BMW.

Owusu died as a result of a single gunshot wound to the chest. Columbus Police arrested appellant on January 6, 2013, at the home of his friend Kwame Kusi.

The Franklin County Grand Jury indicted appellant on one count of murder, in violation of R.C. 2903.02(A), and one count of felony murder, in violation of R.C. 2903.02(B). A jury found appellant guilty of both charges in the indictment. The trial court merged the two counts for purposes of sentencing and imposed a prison term of 15 years to life, consecutive to a mandatory 3-year firearm specification.

Appellant filed a timely notice of appeal to this court on June 11, 2014.

II. ASSIGNMENTS OF ERROR

Appellant's assignments of error are as follows:

[I.] THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO PROVIDE A QUALIFIED INTERPRETER TO TRANSLATE RECORDED TELEPHONE CALLS INVOLVING APPELLANT SPEAKING HIS NATIVE LANGUAGE, IN VIOLATION OF APPELLANT'S RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTION.

[II.] APPELLANT WAS DENIED HIS RIGHTS TO THE PRESUMPTION OF INNOCENCE, TO A FAIR TRIAL AND TO DUE PROCESS CONTRARY TO THE OHIO AND UNITED STATES CONSTITUTIONS WHEN THE JURY HEARD

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EVIDENCE REGARDING THE EXECUTION OF SEARCH WARRANTS.

[III.] APPELLANT WAS DENIED HIS RIGHTS TO THE PRESUMPTION OF INNOCENCE, TO A FAIR TRIAL AND TO DUE PROCESS CONTRARY TO THE OHIO AND UNITED STATES CONSTITUTIONS WHEN THE JURY HEARD EVIDENCE OF APPELLANT'S INCARCERATION PRIOR TO TRIAL.

[IV.] THE PROSECUTION COMMITTED MISCONDUCT BY ASKING LEADING QUESTIONS, THEREBY DENYING APPELLANT HIS RIGHTS TO A FAIR TRIAL AND TO DUE PROCESS CONTRARY TO THE OHIO AND UNITED STATES CONSTITUTIONS.

[V.] APPELLANT'S RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM, TO A FAIR TRIAL, AND TO DUE PROCESS AS GUARANTEED BY THE U.S. AND OHIO CONSTITUTIONS WERE VIOLATED BY THE ADMISSION OF HEARSAY EVIDENCE.

[VI.] THE ADMISSION OF OTHER-ACTS TESTIMONY VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

[VII.] THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON CAUSATION IN VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

[VIII.] STATEMENTS MADE BY THE PROSECUTOR CONSTITUTED PROSECUTORIAL MISCONDUCT THEREBY DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF APPELLANT'S FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

[IX.] APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

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CONSTITUTION, AND SECTION 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

[X.] THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION BASED ON INSUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.

State v. Oteng, No. 14AP-466, 2015 WL 1432556, at *1-3 (Ohio App. 10th Dist. March 31, 2015). On March 31, 2015, the appellate court affirmed the judgment of the trial court. Id. Petitioner filed a timely appeal with the Ohio Supreme Court. He raised four propositions of law. He asserted that the trial court abused its discretion by failing to provide an interpreter to translate recorded telephone calls; that he was denied a fair trial due to admission of evidence regarding execution of search warrants; that he was denied a fair trial based on prosecutorial misconduct due to the use of leading questions; and that he was denied the effective assistance of trial counsel. (ECF No. 10-1, PageID# 305.) On September 30, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Oteng, 143 Ohio St.3d 1481 (2015). On June 16, 2015, Petitioner also filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 10-1, PageID# 358.) He asserted therein that he had been denied the effective assistance of counsel because his attorney failed to raise on appeal claims of prosecutorial misconduct due to the withholding of statements and promises made to the mother of his child, lack of DNA evidence or forensic testing, and the use of improper identification procedures. (PageID# 361-65.) On July 28, 2015, the appellate court denied the Rule 26(B) application. (PageID# 376.) On October 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (PageID# 396.)

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On August 13, 2014, Petitioner filed a motion for a new trial. (PageID# 397.) He asserted that he was denied a fair trial because his feet were shackled during trial. (See PageID# 421.) On October 15, 2015, the trial court denied the motion for a new trial as untimely. (PageID# 421-22.) On April 26, 2016, the appellate court sua sponte dismissed the appeal for failure to file an appellate brief. (PageID# 431.)

On December 16, 2016, Petitioner filed this Petition pursuant to 28 U.S.C. § 2254. He asserts that he was denied a fair trial because the trial court failed to provide a qualified interpreter to translate recorded telephone conversations between Petitioner and a prosecution witness (claim one);...