Collins v. Warden, Se. Corr. Inst.

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KIEZ COLLINS, Petitioner, v. WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION, Respondent.

Civil Action No. 2:21-cv-5073

United States District Court, S.D. Ohio, Eastern Division

September 1, 2022

Edmund A. Sargus, Jr., Judge

REPORT AND RECOMMENDATION

CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE

Kiez Collins, a state prisoner who is proceeding without the assistance of counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is before the Court to consider the Petition (ECF No. 3), the State Court Record (ECF Nos. 9, 11), and Respondent's Answer/Return of Writ (ECF No. 10). Petitioner did not file a reply to Respondent's Answer/Return of Writ. For the reasons that follow, the undersigned Magistrate Judge RECOMMENDS that this Court DENY the grounds in the Petition and DISMISS the Petition WITH PREJUDICE.

I. FACTS AND PROCEDURAL POSTURE

Petitioner challenges his convictions in the Franklin County, Ohio Court of Common Pleas. (ECF No. 3, PageID 26.) Ohio's Tenth District Court of Appeals summarized the facts and procedural history of that case as follows:

{¶ 2} On June 4, 2018, appellant was indicted on one count of aggravated robbery in violation of R.C. 2911.01 (Count 1), two counts of aggravated murder in violation of R.C. 2903.01 (Counts 2 and 3), and two counts of murder in violation of R.C. 2903.02 (Counts 4 and 5). Each count included a three-year firearm specification pursuant to R.C. 2941.145. The indictment arose out of the shooting death of DeSean Bonet on May 26, 2018.

{¶ 3} The matter proceeded to a jury trial in May 2019 at which the state presented the following pertinent evidence. Commencing at approximately 4:30 a.m. on May 26, 2018, the Columbus Division of Police received a series of three anonymous 911 calls regarding a shooting near the intersection of Wilson Avenue and East Deshler Avenue. Plaintiff-appellee, State of Ohio, did not provide a transcript of the 911 calls; however, audio from each of the three calls was played for the jury. The first and second callers reported hearing three or four gunshots, followed by the sound of a man moaning; neither caller had seen anyone in the area. The third caller reported that he heard one or two gunshots and saw a young black man running down the street; the man eventually fell to the ground. The caller averred that he did not know who had fired the shots.

{¶ 4} Within minutes of the 911 calls, Officer Joshua Watson was dispatched to the scene. Upon arrival, Officer Watson observed a man, later identified as Bonet, lying on his back in the grassy area between the sidewalk and the street just north of the Wilson/East Deshler intersection. Bonet had blood around his nose and mouth; he was immobile and not breathing. Officer Watson observed two spent shell casings in the street, approximately 15 to 25 feet from Bonet's body. He did not see any weapons or narcotics in the area.

{¶ 5} Detective Lowell Titus arrived at the scene at approximately 5:30 a.m. He observed two spent shell casings in the street as well as blood on a nearby curb and in the grass. He further noted that a residence located at 1263 Wilson Avenue, just south of the Wilson/East Deshler intersection, had a video surveillance camera mounted on the front porch. In addition, he observed several broken items on the front porch of a residence located at 1267 Wilson Avenue.

{¶ 6} Detectives Raymond Guman and Mark Burghart took numerous still photographs of the crime scene, including the interior and exterior of 1267 Wilson Avenue. Among other things, the photographs depict the sidewalk and three concrete steps leading to the front porch. Interior photographs of the living room depict a small, semiautomatic handgun with an inserted magazine hidden behind several items on the fireplace mantel. The firearm had one live round in the chamber and two live rounds in the magazine. The photographs also depict a clear plastic baggie containing a “green leafy substance” on a shelf in the living room. (May 14, 2019 Tr. at 299.)

{¶ 7} Shortly after the incident, Detective Jennifer Gribi interviewed several people in the neighborhood, including a man who lived at 1267 Wilson Avenue. The man identified himself as Tom Collins and provided a date of birth. She later learned that the man's name was Kiez Collins and that he had admitted to other detectives that he had provided her with a false name and date of birth.

¶ 8} Lindsay Brokaw testified that she lived at 1263 Wilson Avenue, two doors north of 1267 Wilson Avenue. At approximately 4:30 a.m. on May 26, 2018, she awoke to the sound of gunshots. She looked outside, saw nothing unusual, and returned to bed. Ten to fifteen minutes later, she awoke to police lights in the neighborhood. Soon thereafter, police officers knocked on her door and asked if she had seen anything. She told the officers that she had viewed video footage recovered from a security camera mounted at the top left corner of her porch. The officers viewed approximately ten minutes of the footage from Brokaw's phone. They later retrieved it from her computer. During Brokaw's testimony, the state played the video footage for the jury. Brokaw identified the video footage as that retrieved from her security camera. Although she knew appellant from the neighborhood, she could not identify him in the video footage.

{¶ 9} The video footage does not capture the front porch of 1267 Wilson Avenue. The footage depicts a young, black male, later identified as Bonet, running northbound on Wilson Avenue toward the East Deshler intersection. Almost simultaneous with Bonet's appearance in the camera view, two gunshots are heard. Bonet continues to run northbound, away from 1267 Wilson Avenue. Moments later, another man, later identified as appellant, appears in the frame. Appellant chases Bonet down the street and fires two shots in quick succession. Bonet then falls to the ground on the northeast side of the intersection. Bonet can be heard saying, “you got it, you got it” followed by an expletive. (State's Ex. A.) Appellant approaches Bonet, picks up something from the ground near where Bonet fell, and walks south on Wilson Avenue.

{¶ 10} Appellant was eventually arrested. Pursuant to the arrest, the police swabbed appellant's hands for gunshot residue. A forensic scientist from the Ohio Bureau of Criminal Identification and Investigation tested the swabs and found the presence of gunshot residue on appellant's hands. A forensic scientist from the Columbus Police Crime Laboratory examined the handgun recovered from 1267 Wilson Avenue and determined that it was operable. Comparison of the spent cartridge cases and bullets recovered from the crime scene to test cartridge cases and bullets fired from the recovered handgun proved inconclusive as to whether the examined items had been fired from the same weapon.

{¶ 11} Franklin County Deputy Coroner Donald Pojman, M.D., performed an autopsy on Bonet on May 27, 2018 and prepared a report of his findings. That report indicates that Bonet sustained three penetrating^[1] gunshots wounds, one to the chest on the “right side of the mid back,” one to the pelvis “on the left buttock,” and one to the left lower leg. (State's Ex. G.) The report further states that the bullet to the chest travelled from “back to front, upwards and slightly right to left,” the bullet to the pelvis travelled from “back to front and left to right,” and the bullet to the leg travelled from “back to front and upward.” Id. Dr. Pojman's report lists Bonet's cause of death as “[g]unshot wounds of the torso” and the manner of death as homicide. Id.

{¶ 12} The court called John Watson, Jr., as its own witness pursuant to subpoena. During the state's examination, Watson testified that on May 26, 2018, he lived across the street from 1261-1263 Wilson Avenue. He knew appellant casually from the neighborhood. Because it was warm outside, the windows in his house were open. Sometime before 4:30 a.m., he heard appellant say, “[m]an, where's my shit at?” (May 15, 2019 Tr. at 470.) A man Watson did not know responded, “[c]hill out. Chill out. I don't know what you're talking about.” Id. Watson observed appellant “steadily approaching” the man, who was walking backward on Wilson Avenue toward East Deshler Avenue. Id. Appellant repeatedly asked the man “[w]here's my shit at.” Id. at 474. The man repeatedly responded “[c]hill out. I don't know. I don't know what you're talking about.” Id. The man eventually bumped into a car that was parked on Wilson Avenue; appellant pulled out a pistol and shot the man two times. Watson saw the man take two or three steps and then fall to the ground. Appellant then looked at his cell phone, put his gun in his pocket, and walked toward his house; he eventually ran between two houses. Watson testified that he was interviewed by the police after the incident and reported what he had seen.

{¶ 13} During his examination of Watson, defense counsel played the video footage obtained from Brokaw's security camera. Watson acknowledged that what was depicted on the video footage was somewhat inconsistent with the testimony he provided during the state's questioning. In particular, Watson noted that the video footage establishes that four shots were fired, not two. When asked to explain this discrepancy, Watson averred “I might have heard the last two shots, but I didn't hear the first two shots.” Id. at 488.

{¶ 14} At the conclusion of the state's case-in-chief, defense counsel made a Crim.R. 29 motion for judgment of acquittal. The trial court granted the motion as to Counts 1 and 2 [aggravated robbery and aggravated murder], dismissed those counts, and denied the motion as to Counts 3, 4, and 5 [aggravated murder, purposeful murder, and

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