Hale v. Shoop

DELANO HALE, Petitioner, v. WARDEN TIM SHOOP, Respondent.

CASE NO. 1:18-cv-504

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

March 31, 2021

JUDGE SARA LIOI

MEMORANDUM OPINION AND ORDER

INTRODUCTION

Petitioner Delano Hale ("Hale" or "petitioner") was convicted and sentenced to death in the Cuyahoga County Common Pleas Court for the aggravated murder of Douglas Green. Hale filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentences. (Doc. No. 13.¹) He later amended his twenty-sixth ground for relief. (Doc. No. 24-1.) Respondent Warden Timothy Shoop ("Shoop" or "respondent") filed a return of writ to the petition and amended claim. (Doc. Nos. 17, 28.) Hale filed a traverse (Doc. No. 31), and respondent filed a sur-reply. (Doc. No. 33.) For the reasons stated below, Hale's petition (including the amended twenty-sixth ground for relief) is DENIED.

FACTUAL HISTORY

The Ohio Supreme Court set forth the following facts underlying Hale's convictions:

{¶ 1} On June 21, 2004, defendant-appellant Delano Hale Jr. killed Douglas Green by firing four bullets into his head. He then stole Green's Visa card and SUV. Hale was convicted of aggravated murder with an aggravated-robbery specification and was sentenced to death.

{¶ 2} In 2003, Hale was released from prison after serving 12 years of a sentence for aggravated robbery and carrying a concealed weapon. At first, he lived with his father, but left in February 2004. That same month, he obtained a telemarketing job with a base pay of $7.64 per hour. On March 9, 2004, Hale told his sister Lashayla that he had a gun.

{¶ 3} By June 2004, Hale was in financial difficulty. His bank account had a negative balance during all of June 2004. On June 8, he moved into Room 260 of the Lake Erie Lodge, a motel in Euclid. He initially rented the room for a week. He renewed his stay for another week on June 15, renewed for a single night on June 22, and checked out on June 23.

{¶ 4} On June 23, 2004, an employee of the lodge found a human corpse wrapped in plastic garbage bags in Room 231, a vacant room being used for storage. He notified the management, who summoned the police. The body was identified as that of Douglas Green, a local voice teacher, professional singer, and music producer.

{¶ 5} An autopsy disclosed that Green had been shot four times in the right side of the head. Two shots went into Green's right ear, one entered his skull directly behind the ear, and one entered about two and one-half inches behind the ear. Three of the four shots entered Green's brain. Any one of these three wounds would have immediately stopped any voluntary movement on Green's part. Three of the wounds were contact wounds, meaning that the shots were fired from no more than an inch away. Gunshot residue was found on Green's right hand, but not his left, an indication that Green's right hand was in close proximity to the gun when it was fired.

{¶ 6} Green's bank statement shows that at 12:07 p.m. on June 22, 2004, a person using Green's Visa card made a $55.15 purchase at a Giant Eagle store in Willoughby Hills. Giant Eagle records show that the purchaser bought garbage bags, cleaning supplies, beer, and cigarettes in that transaction. Green did not smoke or drink beer. The purchaser also used a Giant Eagle discount card registered to Hale's sister and deceased mother.

{¶ 7} Hale's friend James Hull saw Hale driving a Explorer SUV on two occasions after Green's murder, including on June 23, 2004, when Hull helped Hale move out of the lodge. Hull later identified photographs of Green's SUV as the one Hale had been driving.

{¶ 8} On June 28, 2004, at 2:30 p.m., Detective Sergeant Robert Pestak of the Euclid police found Hale inside Green's Ford Explorer SUV, parked near Hale's workplace in Cleveland. Pestak, supported by Cleveland police units, arrested Hale.

{¶ 9} When told that he was being arrested for Green's murder, Hale said, "I didn't kill anybody." Sergeant Pestak administered Miranda warnings to Hale. While being led to a cruiser, Hale again said, "I didn't kill anybody."

{¶ 10} Hale was taken to the Euclid police station and placed in a cell. After approximately five hours, Hale was removed from the cell and brought to the detective bureau. There, Detective Sergeant James Baird completed a personal-information form on Hale and presented it to Hale for his signature. Hale signed the form using his left hand, but Baird noted that Hale had difficulty writing with that hand.

{¶ 11} Baird then administered Miranda warnings to Hale. Hale signed a Miranda waiver form, and this time, Hale used his right hand. Baird proceeded to interrogate Hale. During the interrogation, Baird told Hale that Green "was possibly bisexual" and that "if this was a case of self-defense, then that would be understandable if he felt that Mr. Green had attacked him."

{¶ 12} Hale wrote out and signed a four-page statement. In his statement, Hale claimed that he had met Green in May 2004 when Green, identifying himself as a record producer, asked Hale whether he had considered singing professionally and gave Hale his cell-phone number. According to Hale, he later called Green, and Green agreed to go to Hale's motel room to hear him sing.

{¶ 13} According to Hale, they had arranged to meet at the Underground Railroad, a bar near the lodge. Hale claimed that he and Green had met at the Underground Railroad on Monday, June 21, 2004. (However, according to the owner of the Underground Railroad, that establishment was closed on Mondays.) They then went to Hale's room. According to Hale, Green had a small gun in his shoulder bag and displayed it to Hale as they entered the room.

{¶ 14} Hale claimed that he sang for Green, then went to the bathroom. Hale claimed that when he returned, he found Green lying on the bed, nude. Hale told Green to leave. According to Hale, Green grabbed Hale's wrists and "laid his head on [Hale's] crotch" while making "slurping" noises.

{¶ 15} Hale claimed that he then freed his right hand, reached into Green's bag, pulled out the gun, held it to Green's head, and cocked it. According to Hale, Green said, "It isn't loaded, so why don't you give me some of that dick."

{¶ 16} Hale fired. Green "reeled back," but still gripped Hale's left wrist, according to Hale. Hale cocked the gun and fired again. He then backed away from Green, took some bullets from Green's bag, and reloaded. According to Hale, Green then tried to stand up. Hale fired "once or twice" more.

{¶ 17} According to Hale, he considered calling an ambulance or the police, but decided not to after he "thought about * * * [his] record" and "the life [he] was attempting to build." Instead, he disposed of the gun and Green's belongings. Then he went out to buy cleaning supplies to clean up Green's blood, using Green's credit card because Hale's "funds were low." The next day, he wrapped Green's body in garbage bags, also purchased with Green's credit card, and dragged the body to a storage room.

State v. Hale, 892 N.E.2d 864, 877-879 (Ohio 2008).

These factual findings "shall be presumed to be correct," and Hale 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, 360-361 (6th Cir. 1998).

PROCEDURAL BACKGROUND

A. State-Court Proceedings

1. Trial

A Cuyahoga County, Ohio, Grand Jury indicted Hale on July 28, 2004, for the aggravated murder of Douglas Green. (Doc. 7-1 at 33-39.²) Hale was charged with two counts of aggravated murder, one under Ohio Rev. Code § 2903.01(A) (purposely causing death with prior calculation and design) and the other under Ohio Rev. Code § 2903.01(B) (causing death while committing, or attempting to commit or fleeing immediately after committing or attempting to commit aggravated robbery). (Id. at 34-35.) Each aggravated-murder count carried a capital specification for felony murder, alleging murder during an aggravated robbery, as well as firearm, prior-conviction, and repeat-violent-offender specifications. (Id.) Hale also was charged with aggravatedrobbery, tampering with evidence, escape, and having a weapon while under disability. (Id. at 36-39.)³ Hale entered pleas of not guilty to all charges. (Id. at 40.)

Hale's trial began on May 9, 2005. (See Doc. No. 8-1 (Trial Tr.) at 226.) He was represented by G. Kenneth Mullin and David Magee of the Cuyahoga County Public Defender's Office and Jillian Davis. (See, e.g., Doc. No. 7-1 at 150.)

The jury convicted Hale on all charges and specifications on June 7, 2005. (Doc. No. 7-2 at 182.) On July 5, 2005, Hale entered a plea of guilty to the escape charge and stipulated to the prior conviction underlying the charge of carrying a weapon while under disability. (Doc. No. 8-5 (Trial Tr.) at 787-89.)

The penalty phase of the trial began on June 13, 2005, and three days later, the jury recommended that Hale be sentenced to death. (Doc. No. 7-2 at 213.) On July 18, 2005, the trial court accepted the jury's recommendation and imposed a death sentence on the merged counts of aggravated murder. (Id. at 267.) The court also imposed consecutive prison sentences of ten years for the aggravated-robbery charge, with an additional three years for the attached firearms specification, and eight years for the escape charge; and prison sentences of five years each for the tampering-with-evidence and weapons-while-under-disability charges, which were to run concurrently with the murder charges. (Id.)

2. Direct Appeal

Hale filed a timely appeal of his convictions and sentences directly to the Ohio Supreme Court. (Doc. No. 7-3 at 5-7.) He was represented by Kelly Culshaw, Ruth Tkacz, and KimberlyRigby of the Ohio Public Defender's Office. (See id.) In his merit brief, Hale presented twenty-two propositions of law, stated as follows:

1. A defendant's right under the Due Process Clause of the Fourteenth Amendment

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