Strickland v. Warden

• Decision Date: 29 November 2010
• Docket Number: Civil Action 2:09-cv-00681
• Parties: Tommie Strickland, Petitioner v. Warden, Southern Ohio Correctional Institution, Respondent
• Court: U.S. District Court — Southern District of Ohio

Tommie Strickland, Petitioner

v.Warden, Southern Ohio Correctional Institution, Respondent

Civil Action 2:09-cv-00681

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Filed: November 29, 2010

Judge Marbley

Magistrate Judge Abel

Report and Recommendation

Petitioner Tommie Strickland, a state prisoner, brings this action for a writ of habeas corpus under 28 U.S.C. §2254. This matter is before the Magistrate Judge on the petition, respondent's return of writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

On March 12, 2005, Dishawn Parks was killed at the Center City Mall in Columbus, Ohio by a single gunshot to the chest. (Transcript of Second Trial, 119-22 and 130.) The incident was captured by video surveillance cameras. Id., 325-26. Parks was at the mall to sell marijuana. He was carrying a cell phone, money and marijuana. Id., 136. After his death, no money or marijuana was found on Parks' body. Id., 92-93.

Witnesses testified they saw petitioner Tommie Strickland at the mall with Keon Lewis. Id., 199, 308-10. Strickland was armed with a handgun. Id., 186-87. Christian Dawson heard Keon Lewis say to Strickland, "Hey, man, he had money, he had weed.... [W]e ought to get him." Id., 197. Later, just before the homicide, Dawson saw Strickland walking with Parks toward the restroom. Id., 207-08. Raymond McNeal saw Strickland and Lewis robbing Parks. McNeal was walking toward the door to the bathroom when Parks came out with his hands up. Strickland held a handgun and Lewis held Parks' Jordan tennis shoes. Parks tried to get his Jordans back, and Lewis fled. Parks then struggled with Strickland for control of Strickland's handgun. McNeal heard a shot and a scream. Then Strickland ran by McNeal, fleeing the mall. Id., 308-10, 325-26 and 330. Erin Crossell testified that Strickland told her that he had been involved in the shooting, that he and the victim had struggled with the gun, and it went off. Id., 453-54. Also admitted into evidence was Allen Wright's testimony at a juvenile court proceeding that Strickland told him he had killed Parks during a robbery at the mall. Id., 438.

The Ohio Tenth District Court of Appeals summarized the facts and procedural history relating to the claims petitioner raises in habeas corpus as follows:

Appellant was bound over to the jurisdiction of the Franklin County Court of Common Pleas, General Division, from the juvenile court. The Franklin County Grand Jury indicted appellant on the above charges and specifications in regards to the March 12, 2005 shooting of Dishawn Parks. Appellant pled not guilty, and a jury trial ensued in March 2006.

At trial, plaintiff-appellee, the State of Ohio, called Christian Dawson to testify. Dawson testified that he overheard appellant and Keon Lewis talking about what they were going to do to Parks. Appellant's counsel objected, and the parties held a sidebar conference. At the sidebar, appellee indicated that Dawson would testify that he heard Lewis tell appellantthat Parks had cash and marijuana and that Lewis stated, "[w]e should rob him." (Mar. 1, 2006 Session Tr. ["Tr."], 124.) The trial court stated that appellee's line of questioning posed a Sixth Amendment Confrontation Clause issue pursuant to Crawford v. Washington (2004), 541 U.S. 36. Appellant's counsel stated he would "[a]bsolutely" object if the prosecution continued with such questioning. (Tr., 126.) The trial court cautioned appellee that:

THE COURT: You understand that Crawford involves a constitutional right. If you promote this it's a violation of [appellant's] constitutional rights that will lead to a mistrial.

[APPELLEE]: I understand, I won't.

(Tr., 126.)

After the sidebar concluded, Dawson testified as follows:

Q. Chris, did you ever hear [appellant] saying anything about what he was planning on doing?

A. At first, it wasn't even his idea. [Lewis] had brought it up to us.

(Tr., 131-132.)

Appellant's counsel objected, and the trial court sustained the objection. Appellant's counsel then stated: "I'm going to have a motion." (Tr., 132.) The trial court allowed appellee to finish questioning Dawson. During cross-examination of Dawson, the parties held a sidebar conference and appellant's counsel asked for a mistrial based on Dawson's testimony concerning Lewis. The trial court ordered a transcript of Dawson's testimony to determine what the witness exactly said, but the court stated that if there was a Crawford violation, "then that might put us at a mistrial mode." (Tr., 146.) Appellee indicated that it only tried to elicit what appellant himself had stated. Ultimately, the trial court adjourned for the evening.

The next day, the parties discussed appellant's mistrial motion.

Appellee opposed the motion, arguing that Dawson had not actually stated what Lewis said to appellant. Appellee also argued that there was no Crawford violation because Lewis' statement was not "testimonial." (Tr., 157.)

Appellant's counsel argued:

* * * [Dawson] did certainly relay what [Lewis] had said, or certainly thought by virtue of what was said in the conversation and who said it.

So I do think you have a Crawford issue because certainly we're not able to cross-examine [Lewis] on what happened, whether there was a discussion and/or what he said in this particular case.

(Tr., 158-159.)

Appellant's counsel then stated:

* * * I have not had an opportunity to talk to [appellant] in any length in terms of our options here, in terms of what, but we did have a concern over the questioning that was raised, and certainly, the response from Mr. Dawson. So we do think it is something that should the defense wish to proceed on, it is a mistrial issue, and that's all. Thank you.

(Tr., 159.)

The trial court declared a mistrial, concluding:

Okay. Well, the context of the question was asked of Mr. Dawson along with the response being, one, not responsive to the question, and that he was-the question was focusing on [appellant], but the way the response came it did put an improper inference in the testimony in that nature. I'll declare a mistrial in this matter. We will reset the matter for trial.

(Tr., 160.)

Next, the following discussion occurred between the parties:

[APPELLANT'S COUNSEL]: * * * I guess [appellant] has a couple of questions as to options here as to whether there are any options as, or whether the Court is intending to declare a mistrial regarding the parties['] position.

THE COURT: I intend to declare a mistrial from hearing testimony of the witness and potential for Crawford violations in front of the jury, and their interpretation of it. I don't see anywhere where it's a fair trial, so it's involving the Sixth Amendment, it's plain err. There's no curative instruction I can do to fix the scenario. With that, I declare a mistrial.

[APPELLANT'S COUNSEL]: Thank you, Your Honor.

[APPELLEE'S COUNSEL]: Just to make the record clear, [appellant's counsel] did request the mistrial yesterday, and he did renew that motion this morning.

THE COURT: Absolutely.

* * *

* * * I'm not saying it's [appellee's] fault for the mistrial, either. So I assume that I'm going to get a double jeopardy motion from [appellant's counsel] but, you know, [appellee] was very conscientious in what he was doing. He was following my instructions. I was very candid early on about the potential. So, you know, if your allegation is that the State is at fault, the witness is the one who opened up the response to the question.

* * *

[APPELLANT'S COUNSEL]: And that's what I was asking, Your Honor, because in light of the Court's position and comments at this moment in time, my purpose for asking the question was, I guess I was curious as to whether the Court would give [appellant] the option of electing to proceed or not.

THE COURT: He can't waive it. There's nothing I can do to fix it. I mean, the time is in front of the jury. You know, we havea person here who we can't confront who the question as to [appellant] says they implicate, the co-defendant is not available, you know, I don't see where we have any option here.

[APPELLANT'S COUNSEL]: No, I understand. And I guess that's what I was trying to glean from the Court's comments. It's my understanding even if we withdraw the motion for mistrial-

THE COURT: I'm going to declare a mistrial.

[APPELLEE'S COUNSEL]: You can't withdraw a motion for mistrial.

THE COURT: Well, it doesn't matter. I would still declare it even if no mistrial has been asked for, it's going to happen.

[APPELLANT'S COUNSEL]: Well, I understand. And as I indicated, in light of my, certainly inability to discuss this further with [appellant], it appears to be academic in light of what the Court is going to do.

THE COURT: In all reality, I would have mistried it anyway. It was within my purview to mistry it.

[APPELLANT'S COUNSEL]: I understand. I guess in fairness to [appellant], in light of the Court's comments at this time, I do withdraw our motion for mistrial.

THE COURT: Well, we can't. It's already been granted, but that's secondary.

(Tr., 161-164.)

The trial court then rescheduled appellant's case for retrial and, thereafter, on March 2, 2006, the trial court journalized its decision to grant a mistrial. In response, appellant's counsel filed a motion to bar appellant's reprosecution. Appellant's counsel argued that double jeopardy barred the reprosecution in part because the trial court proceeded with the mistrialdespite appellant's counsel withdrawing the mistrial motion. The trial court overruled the motion, stating:

The Court finds that the mistrial in this action was predicated upon the request of the Defendant. The Court does not find that the mistrial was precipitated by prosecutorial misconduct.

The trial court also stated:

* * * Defendant's attempt to withdraw his motion for a mistrial was not timely because the motion had already been granted.

* * *

The Defendant did not attempt to withdraw his motion...