Russell v. Bunting

• Decision Date: 25 March 2016
• Docket Number: Case No. 3:15-cv-331
• Parties: JAMES A. RUSSELL, Petitioner, v. JASON BUNTING, Warden, MARION Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JAMES A. RUSSELL, Petitioner, v. JASON BUNTING, Warden, MARION Correctional Institution, Respondent.

Case No. 3:15-cv-331

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

March 25, 2016

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner James Russell to obtain relief from his convictions in the Montgomery County Court of Common Pleas on charges of murder, aggravated robbery, tampering with evidence, and grand theft (Petition, ECF No. 1, PageID 1).

Russell pleads the following Grounds for Relief:

Ground One:Batson violation of 5^th and 14^th Amendment.

Supporting Facts: At Second voir dire, after first remand, the court refused to hear a batson challenge to juror #9 because in it's [sic] opinion, no pattern was established and 1 remaining african american was left in the pool of 50 potential jurors. The prosecutor stated the initial reasons were that juror #9 was young (31) and had no prior work history. She also stated she was not easily persuaded. This revelantion [sic] startled the state into excusing her. In the secon [sic] remand for a batson hearing, which was conducted not in front of the trial judge, and in front of a judge who was predisposed on the issue, the judge alwed [sic] allowed the state to offer new explanations as to why he moved to excuse juror #9. All of which violated this petitioner;'s constitutional rights to a fair trial and the due process of law guaranteed by the 5th and 14^th amendments of the US Constitution.

Ground Two: Ineffective assistance of trial counsel violating the 6^th, 5^th, and 14^th Amendments.

Supporting Facts: Counsel failed to properly prepare for trial, defeated his own suppression motion by stipulating that his client lacked standing to challenge the search sought by him to surpress, [sic] failed to object to irrelevant, inflammatory and prejudicial testimony elicited by the state, conducted ineffective and damaging cross-examination of the state's witnesses, failed to obect [sic]object to irrelevant, speculative, foundationless and unresponsive testimony, failed to complete his discovery duties and disclose exculpatory letters from the state's key witness to petitioner during and before trial to the state, failed to prepare for the Oct. 12, 2012 Batson Hearing. All of which and more violated this petitioner's constitutional rights under the 5th, 6th, and 14th Amendments.

Ground Three: Improper evidentiary rulings by the trial court in violation of the 5^th and 14^th Amendments.

Supporting Facts: Court rfused [sic] to grant surpression [sic] of tainted evidence gained from illegal search [...] and seizure and the police's illegal and untimely search of the apartment which represented the crime [...] scene, court refused to grant mistrial, made improper rulings on Batson claims at trial and hearings; refsed [sic] to allow proper cross examination, allow[ed] testimony without foundation [sic], and allowed nonresponsive and speculative testimony to reach the ju[ry] over objection, imposed maximum consecutive sentences and restitution, and appointed unfamiliar substitute counsel for second Batson hearing all of which violated this petitioner's constitutional rights under 5th and 14^th amendments.

Ground Four: Prosecutorial misconduct in violation of the 5th and 14^th Amendments.

Supporting Facts: The state improper improperly bolstered it's [sic] key witnesses credibility by illiciting [sic] testimony about her taking a polygraph, purposely eliminating 50% of the available african-american juroe [sic] pool, using tainted and illegally obtained evidence, changing it's [sic] position on Batson issues to suit the. . . .

Ground Five: Ineffective assistance of Appellate counsel in violation of the 5th, 6th and 14th amendments.

Supporting Facts: Appellate counsel failed to raise the strongest claims on appeal altering the outcome of the appeals as described in the numerous 26b applications filed in this case which violated this appellant's right to the effective assistance of counsel on appeal which results in a violation of this petitioner's 5th and 14th amendment rights.

Ground Six: Insufficient evidence in violation of the 5th and 14^th amendments of the constitution.

Supporting Facts: Evidence exusted [sic] that showed someone else bought cleaning supplies the day of the murder to clean up the crime scene, the evidence, if it can be called that, collected from the scene was contaminated by many others and therefore unreliable, the plea bargain made with the petitioner's co-defendant is all the state had to rely on and it is highly suspect as the deal literally forced the codefendant to testify the way the state wanted.

Ground Seven: Cumulative error in violation of the 5^th and 14^th Amendments.

Supporting Facts: This case has more constitutional errors than 5 cases and the combined errors have risen to the level of a substantial violation of this petitioner's right to a fair trial and the due process of law in violation of the 5th and 14th amendments.

(Petition, ECF No. 1.)

Procedural History

Russell was indicted by the Montgomery County grand jury on charges of murder, aggravated robbery, tampering with evidence, grand theft, gross abuse of a corpse, and having weapons while under disability. After motion to suppress practice, the first five counts were tried to a jury which returned guilty verdicts. The weapons charge was tried to the court and Russell was convicted on that charge as well. The trial judge sentenced Russell to 40.5 years to life in prison and the conviction and sentence were affirmed on appeal. State v. Russell, 2007-Ohio-137, 2007 Ohio App. LEXIS 129 (2^nd Dist. Jan. 12, 2007), appellate jurisdiction declined, 114 Ohio St. 3d 1411 (2007).

On April 12, 2007, Russell filed an Application for Reopening under Ohio R. App. P. 26(B) which was granted and resulted in remand for a new trial. State v. Russell, 2008-Ohio-774, 2008 Ohio App. LEXIS 671 (2^nd Dist. Feb. 22, 2008), appellate jurisdiction declined, 119 Ohio St. 3d 1409 (2008).

At a second trial, Russell was again convicted by the jury on all five non-weapons counts and sentenced as before. On appeal, the Second District sustained Russell's assignment of error under Batson v. Kentucky, 476 U.S. 79 (1986), remanded for a hearing on that issue, and otherwise affirmed the conviction and sentence. State v. Russell, 2010-Ohio-4765, 2010 Ohio App. LEXIS 4037 (2^nd Dist. Oct. 1, 2010), appellate jurisdiction declined, 127 Ohio St. 3d 1502 (2011).

On remand, the trial court conducted a Batson hearing and found no violation. On appeal, the Second District remanded again for completion of the Batson analysis. State v. Russell, 2012-Ohio-422, 2012 Ohio App. LEXIS 340 (2^nd Dist. Feb. 3, 2012), appellate jurisdiction declined, 132 Ohio St. 3d 1410 (2012). On a second remand, the trial court again found no Batson violation. This conclusion was affirmed on appeal. State v. Russell, 2013-Ohio-5166, 2013 Ohio App. LEXIS 5383 (2^nd Dist. Nov. 22, 2013), appellate jurisdiction declined, 138 Ohio St. 3d 1468 (2014). Russell's subsequent motions to certify a conflict and to reopen the appeal for ineffective assistance of appellate counsel were unsuccessful and he filed his Petition in this Court on September 14, 2015. The case became ripe for decision when Petitioner filed his Traverse on March 21, 2016 (ECF No. 19).

ANALYSIS

Ground One: Racial Discrimination in the Exercise of a Peremptory Challenge

In his First Ground for Relief, Russell claims that his conviction is tainted by the prosecutor's racial discrimination in the exercise of a peremptory challenge at the second trial, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

The Respondent concedes the claim is preserved for merits review in this Court, but argues that the state courts' decision on the claim is entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")(Return of Writ, ECF No. 8, PageID 1455-64).

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

The Second District Court of Appeals decided this claim as follows:

III. Batson Issue

[*P16] In his second assignment of error, Russell claims that the trial court erred in overruling his Batson objection because the State's proffered race-neutral explanation was not credible.

[*P17] In Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, the United States Supreme Court held that the Equal Protection Clause forbids the State from exercising a peremptory challenge to excuse a juror solely because of that juror's race. SeeState v. Murphy, 91 Ohio St.3d 516, 2001 Ohio 112, 747 N.E.2d 765 (2001) (applying Batson). "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors[.]" (Citations omitted.) Batson, 476 U.S. at 86.

[*P18] As stated above, a challenge to the State's use of a peremptory challenge under Batson involves a three-step analysis:

* * * First, the defendant must set forth a prima facie case of discrimination. To establish a prima facie case of discrimination, "the defendant must point to facts and other relevant circumstances that are sufficient to raise an inference that the prosecutor used its peremptory challenge specifically to exclude the

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