Rhines v. Morgan, Case No. 3:13-cv-238

• Decision Date: 03 December 2013
• Docket Number: Case No. 3:13-cv-238
• Parties: ANTWAN RHINES, Petitioner, v. DONALD MORGAN, Warden, Respondent.
• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

ANTWAN RHINES, Petitioner, v. DONALD MORGAN, Warden, Respondent.

Case No. 3:13-cv-238

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

December 3, 2013

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. On the Court's Order for Answer (Doc. No. 3), the State has filed the state court record (Doc. No. 4) and a Return of Writ (Doc. No. 5). Petitioner has now filed a Reply (Doc. No. 7) and the case is ripe for decision.

Rhines pleads the following Grounds for Relief:

Ground One: A trial court commits reversible error, which materially prejudices an accused, and violates an accused's constitutional rights to a fair and impartial trial and to confront and cross examine the witnesses called against him, when it denies an accused the right to ask the name of the witnesses' prior felony convictions and otherwise ordered trial counsel to misinform the jury by reclassifying and reidentifying the actual prior conviction.

Ground Two: When a trial court becomes aware of potential juror misconduct it must make at least a minimal further inquiry to resolve such allegation so as to ensure that an accused's constitutional rights to a fair and impartial trial are not violated.

Ground Three: Where all surrounding facts and circumstances reasonably indicate that a juror was coerced during deliberations by the trial court's dynamite/Howard charge, the accused has beendenied his Ohio and U.S. constitutional rights to a fair and impartial trial.

Ground Four: An accused is denied the effective assistance of counsel in violation of his Ohio and U.S. constitutional rights to counsel, when: 1) Appointed trial counsel fails to call as a witness or otherwise consult any expert witnesses whatsoever, where counsel has knowledge of the prosecution's intent to offer expert witnesses and scientific testimony and evidence, including, but not limited to DNA, in its own case in chief; and 2) Counsel does not request a continuance when [counsel] learned of expert of expert [sic] or other scientific evidence during trial due to non-adherence to discovery request showing counsel's lack of preparation making the adversarial process non-functional.

(Petition, Doc. No. 2, PageID 50-52.)

Procedural History

On December 12, 2008, Antwan Rhines and Runyan Yarborough were in a stolen Chevrolet Malibu when it collided with a Pontiac Grand Prix and a Toyota minivan at Main and Washington Streets in downtown Dayton, Ohio. The driver of the Grand Prix was killed and his three passengers were seriously injured. On May 5, 2010, the Montgomery County Grand Jury indicted Rhines on one count of aggravated vehicular homicide, three counts of vehicular assault, and one count each of receiving stolen property and failure to stop and provide identification after an accident. Rhines was convicted on all counts at trial in October 2010 and sentenced to the term of imprisonment he is now serving in Respondent's custody.

Following conviction and denial of a motion for new trial, Rhines appealed to the Montgomery County (Second District) Court of Appeals which affirmed the conviction. State v. Rhines, 2012-Ohio-3393, 2012 Ohio App. LEXIS 2986 (2^nd Dist. July 27, 2012). The Ohio Supreme Court declined to exercise jurisdiction over a further appeal. State v. Rhines, 133 OhioSt. 3d 1492 (2012). Rhines then filed the instant Petition.

Factual Background

The Second District Court of Appeals summarized the relevant facts in its opinion:

[*P1] Defendant-appellant Antwan Rhines appeals his conviction and sentence for aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third degree; three counts of vehicular assault, in violation of R.C. 2903.08(A)(2)(b), all felonies of the fourth degree; one count of receiving stolen property, in violation of R.C. 2913.51(A), a felony of the fourth degree; and one count of failure to stop after an accident, in violation of R.C. 4549.02, a misdemeanor of the first degree. Rhines filed a timely notice of appeal with this Court on January 3, 2011.

[*P2] The basis for the instant appeal occurred on December 12, 2008, when a stolen Chevrolet Malibu driven by Rhines crashed into two vehicles, a Toyota Sienna minivan and Pontiac Grand Prix, after running a red light at the intersection of South Main and Washington Streets in downtown Dayton, Ohio. The driver of the Grand Prix, Dwayne Bullock, died as a result of injuries sustained in the accident. The remaining three passengers: Bullock's wife, Dara; Bullock's brother, Joseph Bullock; and Joseph's fiancee (now wife), Amanda, sustained serious injuries requiring long term medical treatment. The driver of the Sienna, Tammy Dolphin, did not suffer any injuries in the collision.

[*P3] After crashing into the two vehicles, Rhines fled the scene of the crash on foot and was apprehended by Dayton Police Sergeant Mark Ponichtera at the intersection of 5th Street and Main, a short distance from the accident. Sgt. Ponichtera testified that Rhines was walking with a pronounced limp when he was apprehended. Rhines also met the description of an individual observed climbing out of the stolen Malibu and fleeing the scene of the crash.

State v. Rhines, supra, ¶¶ 1-3.

Rhines does not plead actual innocence as a Ground for Relief, but the whole thrust of his Petition is that he is innocent because Yarborough was the driver. On direct appeal, Rhinesclaimed his conviction was against the manifest weight of the evidence. He does not pursue that claim here, but the court of appeals' summary of the evidence is important background for considering Rhines' assertion of actual innocence:

[*P26] During the trial, the key issue before the jury was whether Rhines was driving the stolen vehicle which caused the accident and resulted in the death of Dwayne Bullock, as well as serious injuries to three other people in his vehicle. In this regard, the State principally relied on the testimony of David Humphrey, a limousine driver who was present in the parking lot of a McDonalds Restaurant directly across from where the collision occurred. Humphrey testified that immediately prior to the collision, he observed a Chevrolet Malibu with two individuals in the front seat speeding down Washington Street at approximately sixty-five to seventy miles per hour. Humphrey stated that the Chevrolet ran a red light and then crashed into a white minivan and then hit the Pontiac driven by Dwayne Bullock which brought all of the vehicles involved in the collision to a stop. In the initial moments after the crash, Humphrey stated that he observed a black male wearing dark pants, a brown jacket, and a knit hat climb out of the driver's side of the vehicle and begin walking towards the back of the BP gas station on the opposite side of the street. Humphrey testified that the man, later identified as Rhines, was walking quickly but with a pronounced limp.

[*P27] Humphrey testified that he got back in his limousine and tried to follow the man fleeing the scene of the collision. Humphrey called 911 to report the collision, and the fleeing driver. Humphrey gave the 911 operator a description of the man based on the clothes he was wearing. The operator told Humphrey to go back to the scene of the collision and to stop following the suspect. Humphrey testified that he followed the man for a moment longer, but eventually returned to scene of the collision and informed the emergency personnel there of what he had witnessed. Upon returning to the scene, Humphrey observed a black male, later identified as Runyon Yarborough, lying next to the passenger side of the Chevrolet being attended to by emergency personnel.

[*P28] After observing Rhines walking/limping northbound on Main Street and taking him into custody, Sgt. Ponichtera arrived at the scene of the collision. Based on his clothing, Humphrey identified Rhines as the man he observed climb out of the driver's side of the Chevrolet and leave the scene by walking northbound on Main Street. We note that although Rhines' DNA was not foundin the Chevrolet, he was observed by Humphrey to be the first individual to climb out of the vehicle on the driver's side within seconds of the collision. Humphrey's testimony clearly supports the State's theory that Rhines was the driver of the stolen Chevrolet which caused the collision that took Dwayne Bullock's life.

[*P29] It is undisputed that Yarborough's DNA was found on the driver's side airbag. Nevertheless, the State presented evidence that the passenger side door would not open, thus requiring Yarborough to climb out the driver's side door and providing an explanation as to how his DNA was deposited on the deployed airbag. Mary J. Cicco, a forensic expert from the Miami Valley Regional Crime Lab, testified that the absence of Rhines' DNA from the deployed airbag on the driver's side did not preclude him from being the driver of the vehicle, noting that no DNA was deposited on the airbag deployed on the passenger side.

[*P30] Upon review, we conclude that Rhines' conviction is not against the manifest weight of the evidence. The credibility of the witnesses and the weight to be given their testimony were matters for the jury to resolve. Rhines presented no evidence at trial. Instead, Rhines attempted to undermine the State's case by discrediting the testimony of the various individuals who witnessed all or part of the collision and its aftermath. Specifically, Rhines attempted to establish that Yarborough was the driver of Chevrolet. We cannot say that the jury lost its way simply because it rejected Rhines' contention that Yarborough was the driver. Humphrey observed the collision and positively identified Rhines as the individual he saw climb out the vehicle on the driver's side and flee the scene.

[*P31] We note that witness Michael Davis testified that he did not see the collision occur nor

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