Report and Recommendationof Magistrate Judge
On January 23, 20121 , Petitioner Eugene Snyder, Jr. ("Petitioner"), acting pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. ECF Dkt. #1. Petitioner seeks relief for alleged constitutional violations that occurred during his trial in the Tuscarawas County, Ohio Court of Common Pleas, where he was convicted of one count of aggravated murder in violation of Ohio Revised Code ("ORC") §2903.01(A), with a firearm specification pursuant to ORC §2941.145, one count of felonious assault in violation of ORC §2903.11(A)(2), with a firearm specification pursuant to ORC §2941.145, and five counts of tampering with evidence in violation of ORC 2921.12. ECF Dkt. #11-1 at 5. On June 5, 2012, Respondent Warden Buchanan ("Respondent"), Warden of Ross Correctional Institution, where Petitioner is incarcerated, filed an answer/return of writ. ECF Dkt. #11. No traverse was filed, however a lengthy memorandum of law in support was attached to the petition. For the following reasons, the undersigned RECOMMENDS that the Court DISMISS the petition in its entirety with prejudice:
I. SYNOPSIS OF THE FACTS
The Fifth District Court of Appeals of Ohio set forth the relevant facts on direct appeal. ECF Dkt. #11-1 at 13-38. These binding factual findings "shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 119 S.Ct. 2403 (1999):
{¶ 2} Shortly after 10:00 a.m. on October 29, 2009, appellant called 911 and reported that he found his wife, Debby Snyder, dead in the driveway of their Mineral City residence. Sheriff's deputies arrived on the scene to find Debby's dead body lying in a pool of blood at the bottom of the front porch steps of the residence, near the driver's side of a Chevy Trailblazer. The front of Debby's neck had three incisions, measuring up to nine inches in length and up to four inches in depth. Roughly one-half of her neck was transected, including her larynx and part of her esophagus. The crime scene revealed a trail of blood leading from the bottom of the driveway to the area where the body was found. Blood was also found on the interior of the Trailblazer, the exterior of the driver's side door, and the rear wheel on the driver's side.
{¶ 3} At the scene, appellant explained to police that Debby had not been home for days and when he left the house at 5:00 a.m. for work that morning, he noticed her Trailblazer in the driveway. After checking the passenger side window with a flashlight and not seeing her purse in the vehicle, he assumed she left with someone else and he went to work. Appellant was self-employed with a trash route. He claimed that when he arrived home around 10:00 a.m. after finishing his route and stopping at the landfill, he noticed Debby's body lying in the driveway. When questioned about the fact that he claimed to have just returned from work, but he was wearing slippers, he explained that he stopped to change out of his boots upon entering the home to call 911.
{¶ 4} Sheriff Walt Wilson drove appellant to the home of Gary Snyder, appellant's son, to wait while the crime scene was processed. While in route appellant confessed that he had removed his wife's wedding ring from her finger and hid it in the basement bathroom above the shower. He later explained that he took the ring off her finger because "it was sticking up there like a rose in a shit pile." Tr. 545. Officers recovered the ring above the basement shower.
{¶ 5} Late in the afternoon of October 29, deputies searched the area of the Kimble landfill where appellant had dumped a load of trash earlier that day. Officers located a shirt with an image of a trash truck and the words "Snyder Enterprises." The shirt was covered in dark stains which were determined to be bloodstains.
{¶ 6} Appellant agreed to come to the Sheriff's office for an interview on October 30, 2009. He was interviewed by Detective Orvis Campbell. Appellant initially repeated his story that he found the body when he returned home from work. He also explained that in the afternoon of October 28, Debby's daughter called him, looking for her mother. He told his stepdaughter that Debby was "probably out with her damn boyfriend somewhere" and hungup the phone. He also explained that he spoke with Debby around 8:00 p.m. on October 28, and she told him she would be home around 10:00 p.m. to sign checks for their business, which was in Debby's name.
{¶ 7} When appellant was confronted with the bloody shirt found in the landfill, appellant changed his story and explained that he found his wife dead before he left for work. When further confronted, appellant began to admit that he was responsible for her death.
{¶ 8} Appellant said that his wife came home around 10:00 p .m. and they began arguing about money. Debby told him she had had an affair, but it was a mistake. Appellant and Debby began physically fighting and hitting each other. He admitted that she got into the Trailblazer, and while she was sitting there he went to the garage and retrieved a utility knife, which he used to cut her neck.
{¶ 9} After a break in the interview, appellant revealed that he shot Debby as well. He explained that he had a .32 caliber pistol in his pocket when she returned home. He stated that Debby came after him with a shovel and he unloaded the pistol at her, but she kept coming after him. He said she told him, "You old fucker, I'm gonna kill you." When she continued to pursue him despite the shooting, he went into the garage and got the utility knife. She was sitting in her SUV and weakening. He said at that point she was "still running her fuckin' mouth" so he cut her twice. Following the interview, appellant led detectives to retrieve his bloody clothes which he had discarded along his trash route, and to the place at Atwood Dam where he had thrown the gun and knife into the water.
{¶ 10} Officers noted that the shovel on appellant's property was covered with leaves and standing upright against a dirt pile, and did not appear to have been recently moved or used in an assault. Although appellant claimed he suffered a painful injury to his ribs from the blow from the shovel, he complained to a medic on the scene about chest pain but never mentioned this rib injury. He never complained to jail staff about this injury and had no apparent marks.
{¶ 11} The autopsy demonstrated that in addition to the incised wounds to her neck, Debby had 12-15 contusions under her scalp, suggesting blunt force trauma to her head. She had severe bruising on both knees and elbows. The autopsy also revealed four gunshot wounds, two to her torso and two to her head. Debby had cocaine present in her bloodstream. The coroner found that although they were not "drop and die" injuries, the gunshot wounds would have eventually killed Debby. However, the incised wounds to the neck by themselves would have caused her death.
State v. Snyder, 2011 WL 2586789 at *1-3.
II. PROCEDURAL HISTORY
On November 5, 2009, the Tuscarawas County, Ohio Grand Jury indicted Petitioner for:
Id. at 40-45.
Prior to trial, the state filed proposed jury instructions as to "prior calculation and design" with a memorandum for the lesser included offense of murder, and a motion in limine as to evidence of the victim's character. Petitioner filed a motion in limine, a motion for specific jury instructions, and proposed jury instructions as to the lesser included offense of voluntary manslaughter. Id. at 46-92. The case proceeded to trial on May 5, 2010, where Petitioner was found guilty of one count of aggravated murder in violation of ORC §2903.01, with a firearm specification pursuant to ORC §2941.145, and one count of felonious assault in violation of ORC §2903.11(A)(2), with a firearm specification pursuant to ORC §2941.145. Petitioner entered a plea of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to five counts of tampering with evidence in violation of ORC 2921.12. Id. at 93-98.
At the sentencing hearing on May 24, 2010, the trial court found that Counts One and Three were allied offenses of similar import, and the prosecutor elected to dismiss Count Three. Id. at 6. The trial court also dismissed Count Two as a lesser included offense of Count One. The trial court imposed a life imprisonment without parole on Count One, plus a consecutive three-year sentence on the firearm specification, and concurrent five-year sentences on each of the tampering with evidence convictions. Id.
On June 8, 2010, Petitioner, through counsel, filed a notice of appeal to the Ohio Court of Appeals for the Fifth District. Id. at 99. Petitioner raised the following assignments of error in his appellate brief:
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS WHEN IT IMPROPERLY INSTRUCTED THE JURY WITH REGARDS TO AGGRAVATED MURDER.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS WHEN IT FAILED TO PROVIDE JURY INSTRUCTIONS OF MANSLAUGHTER,
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