MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
This
habeas corpus case, brought by Petitioner Demetrius Williams
with the assistance of counsel[1], is before the Court for decision
on the merits. Relevant pleadings are the Petition (ECF Nos
1, 1-2), the State Court Record (ECF No. 6), the Warden's
Return of Writ (ECF No. 7), and Petitioner's Traverse
(ECF No. 10).
Early
in the morning of September 4, 2017, Pierre Jackson and his
cousin Rino Lattimore were shot in the parking lot of the
Plush Gentlemen's Club in Harrison Township. On September
15, 2017
a Montgomery County Grand Jury indicted Petitioner Demetrius
Williams on two counts of Murder (Counts 1, 3), each with
three three-year firearm specification; two counts of
felonious assault (Counts 2, 5), each with a three-year
firearm specification; two counts of felonious assault, each
with a serious physical harm specification (Counts 4, 6); and
one count of having weapons while under disability (Count 7).
(Indictment, State Court Record, ECF No. 6, Exhibit 1).
Several
pretrial motions to suppress were withdrawn by defense
counsel before being heard and decided. Counts one through
six with the accompanying firearms specifications were tried
to a jury which found Williams guilty. The weapons under
disability count was tried to the bench, also resulting in a
guilty finding. After a number of counts were merged at
sentencing, Williams was sentenced to an aggregate term of
imprisonment of twenty-nine years to life (Termination Entry,
State Court Record, ECF No. 6, Ex. 11).
Williams
appealed to the Ohio Court of Appeals for the Second District
which affirmed the conviction. State v. Williams,
2019-Ohio-4105 (Ohio App. 2nd Dist. Oct. 4, 2019).
The Supreme Court of Ohio allowed Williams to file a delayed
appeal, but then declined to exercise jurisdiction. State
v. Williams, 158 Ohio St.3d 1465 (2020).
On
December 23, 2019, Williams filed an application to reopen
his appeal pursuant to Ohio App. R. 26(B), accompanied by his
own affidavit. (Application for Reopening, State Court
Record, ECF No. 6, Exhibits 24, 25). The Second District
denied the Application on the merits (Decision, State Court
Record, ECF No. 6, Ex. 27) and the Ohio Supreme Court again
declined appellate jurisdiction. Id. at Ex. 31.
Williams filed his Petition for Writ of Habeas Corpus in this
Court on July 13, 2021.
Williams
pleads the following Grounds for Relief:
Ground One: Due Process violation when
denied the constitutional right to present a defense.
Supporting Facts:
1. Petitioner was denied his constitutional right to present
a defense, in violation of the Sixth Amendment to the United
States Constitution.
2. “The United States Supreme court has long held that
an accused's right to establish a defense is a
fundamental element of the due process of law”.
Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920,
18 L.Ed 2d 1019 (1967.)
3. The right to a defense is “in plain terms the right
to present a defense, the right to present the
defendant's version of the facts as well as the
prosecution's to the jury so it may decide whether the
truth lies.” Id. at 19.
4. “The right to testify on one's own behalf at a
criminal trial has sources in several provision of the
Constitution. It is one of the rights that “are
essential to due process of law in a fair adversary
process.”' Rock v. Arkansas, 483 US. 44,
51, 107 S.Ct. 2704, 97 L.Ed 2d 37(1987), quoting Faretta
v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed
2d 562(1972).
5. In this matter, Mr. Williams averred that he wanted to
testify at trial, but was not permitted to do so. Mr.
Williams' due process rights were violated when he was
denied the right to present a defense.
Ground Two: Denial of Effective Assistance
of Counsel
Supporting
Facts:
6. Mr. Williams incorporates each allegation contained
elsewhere in this petition as if fully rewritten herein.
7. Mr. Williams was denied the effective assistance of
counsel as mandated by the Sixth Amendment to the United
States Constitution.
8. Trial counsel was so ineffective that he did not live up
to the standard of assistance of counsel as prescribed in the
Sixth Amendment to the United States Constitution thereby
depriving Mr. Williams of a fair and reliable trial.
9. The sixth Amendment states “[i]n all criminal
prosecutions, the accused shall enjoy the Assistance of
Counsel for his defen[s]e.”
10. The Supreme Court's decision in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984) has established the process by which courts are to
decide ineffective assistance of counsel claims. Under
Strickland a defendant must first show that counsel's
performance was so inadequate that counsel did not meet the
standard set by the Sixth Amendment. Id. at 687.
Second, a defendant must establish that counsel's
inadequate performance deprived the defendant of a fair and
reliable trial. Id.
11. Trial counsel failed to meet the standard of assistance
of counsel as guaranteed by the Sixth Amendment and as
described in Strickland in that he failed to obtain
a crime-scene reconstructionist; failed to investigate the
Government's forensic evidence; failed to contact,
interview, or call witnesses to testify at trial; failed to
allow Mr. Williams to testify in his own defense; and failed
to suppress evidence including Mr. Williams' statements
and identification. These failures of trial counsel deprived
Petitioner of his right to a fair and reliable trial as
guaranteed under Strickland.
12. All these stated examples show trial counsel's
performance was not reasonable as they demonstrate a lack of
diligence in preparation, for which there is no reasonable
explanation under the circumstances. As a result, Mr.
Williams was prejudiced as confidence in the outcome was
severely undetermined.
13. Trial counsel failed to thoroughly investigate the
forensic evidence in this matter and should have retained an
accident reconstructionist. In this matter, no forensic
evidence linked Mr. Williams to the murder weapon. In fact, a
bullet recovered from another vehicle on scene was not
thoroughly investigated by the defense. A reconstructionist
could have demonstrated a second shooter.
14. Additionally, before the trial, trial counsel filed
motions to suppress evidence challenging statements and
identification of Mr. Williams. Trial counsel subsequently
withdrew all pending motions to suppress prior to trial.
Trial counsel was ineffective by withdrawing the motions to
suppress and by failing to suppress in-court identification
of Mr. Williams.
15. The Supreme Court of the United States holds that an
identification derived from unnecessarily suggestive
procedures, which have a likelihood of leading to a
misidentification, violate a defendant's due process.
Neil v. Bigger[s], 409 U.S. 188, 93 S.Ct. 375, 34
L.Ed.2d 401 (1972).
16. A two-step process should be used to determine the
admissibility of identification testimony. First, the court
must decide whether the identification was impermissibly
suggestive. If the identification was suggestive, the court
must determine if the identification was reliable and there
was not a substantial likelihood of irreparable
misidentification. Mason [sic] v. Brathwaite, 432
U.S. 98, 97 S.Ct. 2243; 53 L.Ed.2d 140 (1977).
17. “It is obviously suggestive to ask a witness to
identify a perpetrator in the courtroom when it is clear who
is the defendant.” U.S. v. Rogers, 126 F.3d
655 (5th Cir. 1997). Citing U.S. v. Archibald, 734
F.2d 938, 941, 943 (2d Cir. 1984); U.S. v. Hill, 967
F.2d 226, 232 (6th Cir. 1992); U.S. v. Rundell, 858
F.2d 425, 427 (8th Cir. 1988).
18. There are five factors to be considered in determining
the likelihood of misidentification: 1) the opportunity of
the witness to observe the criminal at the time of the crime;
2) the witness's degree of attention; 3) the accuracy of
the witness's prior description; 4) the witness's
level of certainty and 5) the time between the crime and the
identification. Biggers at 199.
19. In this matter, the felonious assault victim identified
Mr. Williams as the shooter. However, he admitted he did not
see the deceased get shot, and if fact, testified that he
thought another individual shot the deceased. No. DNA or
other forensic evidence tied Mr. Williams to the murder
weapon. Identification of Mr. Williams as the perpetrator of
the felonious assault tainted subsequent identification of
Mr. Williams as the murderer. The identification is
impermissibly suggestive resulting in a substantial
likelihood of irreparable misidentification. Trial counsel
fell below the Strickland Standard by failing to
challenge in-court identification of Mr. Williams.
20. Ultimately, Mr. Williams was denied his Constitutional
right to effective assistance of counsel at the trial level
due to the detrimental failings of his trial counsel. Because
Mr. Williams was denied effective assistance of counsel in
clear violation of the Constitution and firmly established
Supreme Court precedent, he is entitled to habeas relief.
(Petition,
ECF No. 1-2, PageID 20-23).
Petitioner
asserts his Petition is timely under the “Holding in
Clay, ” presumably intending Clay v.
United States, 537 U.S. 522, 532 (2003)(Petition, ECF
No. 1, PageID 14). By Respondent's calculation, the
Petition was filed on the last day of the limitations period,
making it timely. No. analysis under Clay is needed.
As will
be seen below, all of Petitioner's claims are properly...
