Cremeans v. Warden

RANDALL CREMEANS, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:18-CV-633

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

December 27, 2018

CHIEF JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

I. Facts and Procedural History

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 2} The following evidence is adduced from the record of appellant's jury trial.

Hendricks Accuses Appellant of Theft

{¶ 3} On April 17, 2015, around 6:00 p.m., Tameka Alexander was at home in Zanesville with her two minor children, "Jane Doe" and "Mary Doe," when several friends stopped by, including minors "B.B." and "C.C.," Jeremiah Marple, and Samantha Evans. Tameka was pregnant at the time. Tameka's boyfriend Brent Mayle also lives at the home but was not present during these events. Mayle knows appellant and appellant had been to the house several times.

{¶ 4} The day before, appellant purportedly met Christopher Hendricks for the first time. On April 17, Hendricks confronted appellant about stolen items in appellant's possession, including two T.V.s and a game system.FN1 The stolen items belonged to Hendricks. Hendricks said Tameka and Mayle told him appellant stole the items.

Appellant denied the theft and asserted he bought the items from Mayle. Hendricks told appellant they were going to Tameka's house to "straighten this out."

FN1: At trial a question arose whether the stolen items included a locked safe; appellant denied knowledge of a safe and other witnesses mentioned only the electronics as the disputed items.

Appellant and Hendricks Confront Tameka

{¶ 5} Around 6:00 p.m., Tameka, her daughters, and the friends were inside the house when appellant walked in the door, closely followed by Hendricks, who shut and locked the door behind him. Appellant told Tameka to tell Hendricks appellant didn't take his stuff. The scene became chaotic.

{¶ 6} Hendricks' purpose was to find Mayle. He immediately became irate and confrontational; he pulled a gun and "waved it around," yelling. Hendricks pointed his gun at everyone present, including at Jane and Mary Doe and at Tameka's stomach. Hendricks told Tameka and the children to sit down on the couch.

{¶ 7} Hendricks took Tameka's cell phone, put his gun to Jane Doe's head and told Tameka to give him her password. Hendricks called Mayle using the phone and told him he had until 10:00 p.m. to get home "and deal with his shit" or he wouldn't have a home to return to. B.B. heard him ask Mayle where he was and where his money was.

{¶ 8} Meanwhile, appellant grabbed Tameka's daughter and called Tameka a "stupid bitch" for putting her kids through this and not cooperating with Hendricks fast enough. He also tried to kick Tameka.

{¶ 9} Appellant told Hendricks they should leave because Mayle was probably calling the police, and the victims heard the two discussing whether they should bring the victims with them. B.B. heard appellant tell Hendricks there wasn't enough room to take all of the victims. Appellant suggested instead that they take the victims' cell phones and I.D.s. Hendricks told appellant to "tie them up."

{¶ 10} Accounts varied as to whether appellant had a gun. Tameka said he had a gun which he sometimes put in his pocket and at other times waved in the air. Tameka testified she did not remember a description of appellant's gun, although it was smaller than Hendricks,' which was gray and black and "pocket size." She did not see the gun well enough to describe it. B.B. agreed that both appellant and Hendricks had "small" guns and both yelled at Tameka about tracking down Mayle. B.B. described appellant's gun as black and gray.

{¶ 11} C.C., Evans, Marple, and B.B. were tied up with phone charging cords and electronics cords. Accounts varied as to which suspect tied up the victims. Tameka testified both appellant and Hendricks tied people up, but did not recall whichsuspect tied which victim. B.B. only saw Hendricks tying people up but acknowledged she was terrified and only focused on what was happening to her, not the others.

{¶ 12} Tameka and her daughters remained on the couch while the friends, now tied up, sat against the stairs. B.B. testified Hendricks told the group not to say anything because "they got money and money gets you what you want," which she took as a threat.

{¶ 13} Appellant and Hendricks left the house and got in Hendricks' car, but Hendricks came back inside because he forgot his keys. C.C., B.B., Marple, and Evans untied themselves in the meantime and ran to their own car. Appellant went to the victims' car and took the keys out of the ignition, telling them not to leave until he and Hendricks were gone.

{¶ 14} Hendricks returned to the car and drove off with appellant.

{¶ 15} C.C. testified reluctantly at trial. She said appellant was in shock during the incident and she believes he only helped to tie up one victim other than her. C.C. said appellant hugged her and tried to untie her. C.C. also testified, however, that it was appellant's idea to take the victims' I.D.s "in case anyone snitched." C.C. said appellant tried to calm the situation and she only saw one gun during the entire incident, which was brandished by Hendricks.

{¶ 16} Samantha Evans also testified only Hendricks showed a gun. She did not recall who tied up the victims. She recalled Hendricks threatening them not to snitch because he "has money and money can get him what he wants." Hendricks also said he had seven bullets, or one for everyone in the house. She testified that appellant and Hendricks discussed taking the victims with them, but appellant suggested they should take their cell phones and I.D.s instead. Appellant asked Evans for her I.D. and she said it was outside in the car, in her jacket pocket. Appellant left the house and brought the jacket back in for Evans to hand over the I.D.

{¶ 17} Evans further testified that appellant and Hendricks left the house but were still outside in their car when she and the others ran outside to their own car. Evans testified appellant came over to their car, took the keys out of the ignition and dropped them inside the car, telling them to wait until he and Hendricks left.

Appellant's Testimony, Cross Examination, and Rebuttal

{¶ 18} Appellant testified on his own behalf at trial. He acknowledged his record of felony convictions. Appellant said his plan in taking Hendricks to Tameka's house on April 17 was simply to ask her why she told Hendricks appellant stole his stuff. He walked into the house without knocking because he was accustomed to doing so and the door was unlocked.

{¶ 19} Appellant testified he was shocked that Hendricks immediately became angry, pulling a gun and threatening Tameka. Hendricks locked the door and said no one was leaving until he got his stuff. Appellant said he was trying to calm the frightened kids and victims as Hendricks yelled, waved a gun and threatened everyone.

{¶ 20} Appellant admitted he argued with Tameka, that he told her to tell Hendricks where Mayle was and asked whether she loved her kids. Appellant insisted Hendricks alone tied the victims up while appellant walked around aimlessly, not knowing what to do. He heard Hendricks call Mayle from Tameka's phone, and heard Mayle say he wasn't returning to the house. In response Hendricks told Mayle he would kill everyone in the house. Mayle hung up on Hendricks, and appellant testified he tried to get Hendricks to leave by warning him Mayle was probably calling police. Hendricks was irate and said they were taking everyone with them, to which appellant suggested they take the I.D.s instead. Appellant said he tried to untie one of the victims but Hendricks stopped him, saying they had to leave immediately. Appellant got in the car with Hendricks because he was scared. Hendricks realized he left his car keys in the house and went back in.

{¶ 21} Appellant said it was Hendricks who went to the victims' car and removed the keys from the ignition, telling the victims not to leave until they were gone.

{¶ 22} Appellant said he was trying to reason with Hendricks throughout the incident, telling him he had "nothing to do with it," meaning the theft of Hendricks' items. Appellant said Hendricks dropped him off and the two never spoke again.

{¶ 23} Appellant insisted he did not have a gun on April 17, never displayed a gun, and never claimed he had a gun or bullets. He only suggested taking the victims' I.D.s so that Hendricks would not feel it necessary to take the victims with them when they fled the house. Appellant denied taking anyone's phones and denied tying anyone up. He said he had no idea what Hendricks planned to do when they went to Tameka's house. He was "in shock" throughout the incident but couldn't stop Hendricks because Hendricks had a gun.

{¶ 24} Appellant testified he turned himself in to police shortly after he heard police were looking for him, although he admitted he was "too scared" to go to the police on his own immediately after the incident.

{¶ 25} On cross-examination, appellant was queried about events leading up to the incident at Tameka's house. He claimed that Hendricks was "not aggressive" when he confronted appellant about his stolen belongings, but he also said that the night before, Hendricks' "crew" had marched appellant through a dark alley and he thought they would shoot him. Appellant continued the next day to insist he hadn't stolen Hendricks' items, and Hendricks then told him they were going to Tameka's house to "straighten this out." Appellant testified he did not tell Detective Hill, thelead

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