Kelly v. Warden, Pikaway Corr. Inst.

JERMAINE KELLY, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTUTION Respondent.

CASE NO. 2:19-CV-01984

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

November 26, 2019

JUDGE MICHAEL H. WATSON

Chief Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Traverse and Supplement to the Traverse, and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that this action be DISMISSED.

I. Facts and Procedural History

Petitioner challenges his convictions after a trial in the Delaware County Court of Common Pleas for murder, intimidation, and having a weapon while under disability, with specifications. The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 3} On July 22, 2016, the Delaware County Ohio Grand Jury returned a joint indictment against co-defendants Jermaine Kelly and Reginald Conley. The indictment charged Appellant Kelly with two counts of Murder; Count One in violation of R.C. § 2903.02(A) and Count two in violation of R.C. § 2903.02(B), both unclassified felonies, Count Three: Intimidation of a Witness, in violation of R.C. § 2921.04(B)(2), a third-degree felony, and two counts of Having a Weapon Under Disability in violation of R.C. § 2923.13(A)(4). Counts One, Two, and Three also each carried a Gang Affiliation Specification in violation of R.C. § 2941.142 and Firearm Specifications, in violation of R.C. § 2941.145.

{¶ 4} Prior to trial, the defendants moved to sever their trials. Following an evidentiary hearing, the motions were denied. The trial court also held an evidentiary hearing on the defendants' motions in limine to exclude evidence of Conley's involvement in a double homicide with Gervins. Again, the trial court denied the motions.

{¶ 5} Appellant waived his right to a jury trial as to the gang specifications related to Counts One, Two, and Three, and his right to a jury trial as to the having weapons under disability charges. Those charges were tried to the court. The murder and intimidation charges along with the firearm specifications were all tried to a jury, with the trial commencing on March 6, 2017 and continuing through March 7, 8, 9 and 10, 2017. At trial, the jury heard the following account of the events which took place on November 9, 2012, which led to the above charges:

{¶ 6} Victoria Hilbrands testified that on November 9, 2012, she lived at 6901 Redbank Rd. in Galena, Ohio. Around 5:30 P.M. she heard a loud banging on the door. T. at 254-255. She could not initially see anyone outside the door. However, she heard a man, later identified as Dontee Gervins, yelling that he had been shot and asking to be let in. T. at 256. Mrs. Hilbrands immediately called 911. T. at 257. That call was placed at 5:43 P.M. T. at 284. While on the phone with 911, Mrs. Hilbrands could hear Gervins on his cell phone. Gervins repeatedly said "I won't tell anybody" to the person with whom he was speaking. T. at 260.

{¶ 7} Gale Dunlap testified that she lived on Gorsuch Rd. This is a short distance from the Hilbrands' residence on Redbank Rd. T. at 346-347. On November 9, 2012 Dunlap was returning home from work sometime after 5:00 P.M. when a vehicle pulled out of the Hilbrands driveway. The vehicle exited the driveway in a manner that forced her to brake her vehicle. T. at 350. She described the vehicle as a light blue or gray sedan but could not identify who was driving or how many occupants were in the vehicle. T. at 351. Mrs. Dunlap was behind the vehicle for a short period of time. During this time, the vehicle failed to stop at two stop signs. T. at 353. Around this same time Mrs. Dunlap saw a squad traveling toward the location where the shooting had occurred. Mrs. Dunlap was unable to positively identify the vehicle but testified it was consistent with that later found to be used by Reginald Conley. T. at 356.

{¶ 8} Deputy Charm Johnson (also referred to in the record by her maiden name as "Charm Miller") testified that she was the first person to arrive at the Hilbrands' residence after the shooting. T. at 284-286. She arrived at approximately 5:50 P.M. T. at 299. Dep. Johnson found Gervins laying on the front porch of the Hilbrands' residence. T. at 286. Gervins appeared very weak, indicated he had been shot, but was unable to verbalize his name or other information at that time. T. at 286. Gervins' cellphone was lying next to him on the porch and Dep. Johnson could hear a female voice on the line. T. at 287. Shortly thereafter, Dep. Johnson notified medics that the scene was safe and they could approach to aide Gervins. T. at 288.

{¶ 9} Brooks Church testified that he was one of the first medics who arrived at the residence. T. at 326. Church described Gervins as scared, very alert, barely able to speak, but could speak a little in between breaths. T. at 328. Church asked Gervins where the shooting occurred. Gervins responded "here" and gestured as if to indicate near the residence. T. at 330. When asked, Gervins indicated that he knew who shot him. T. at 330.

{¶ 10} Detective Charles Gannon was the first officer to arrive on scene after Deputy Johnson. He testified he became involved in the investigation at 5:42 P.M. on November 9, 2012. T. at 1190. He was on his way home when the 911 call was placed, but he was the closest detective to 6901 Red Bank Rd. T. at 1190. When Det. Gannon arrived at the scene, medics were working on Mr. Gervins and he was still alive. T. at 1194. Shortly after Det. Gannon arrived, Gervins' cellphone began ringing and "Wifey" was displayed as the caller on the screen of the cell phone. T. at 1200. Det. Gannon had a brief conversation with Amber Bland and ended the call to continue his work on the scene. T. at 202-1203. Det. Gannon finished assisting processing the scene and documented what occurred. T. at 1203-1212. After his work at the scene was completed, he drove to Riverside hospital. T. at 1217.

{¶ 11} At the hospital, Det. Gannon learned that Dontee Gervins had been living with his fiancé, Amber Bland, on the near-east side of Columbus, Ohio. T. at 376. Gervins was selling marijuana to pay the bills and was associated with a gang called the Bloods. T. at 377. During this same time frame, Ms. Bland informed him that Gervins and her brother (Richard Bland) were closely associated with a man named Reginald Conley. T. at 378. He learned Conley went by the street name "Twice." T. at 378.

{¶ 12} Ms. Bland explained that late in the morning on November 9, 2012, Gervins and Ms. Bland ordered pizza and "chilled" at their residence with his friend "Blaze" (later identified as Domino Mack) and Blaze's girlfriend. T. at 379. After they finished eating pizza, Gervins received a phone call and stated that he had to leave but would be back. T. at 380. Before Gervins left, Ms. Bland heard him go into the laundry room and retrieve an unknown quantity of money from a safe in the ceiling. T. at 381-382. Shortly thereafter, Gervins left with Blaze and Blaze's girlfriend. Ms. Bland then fell asleep with her children. T. at 383.

{¶ 13} Several hours later, Ms. Bland was awoken by a phone call from Gervins. T. at 383. When she answered the phone, he immediately stated "Babe, I've been shot" and hung up the phone. T. at 383. This call was placed at 5:44 P.M. Ms. Bland immediately called him back and had a short conversation with him. Gervins sounded scared and out of breath. T. at 384.

{¶ 14} When Ms. Bland called him back, Gervins stated that he had been shot and that he was in New Albany. When Ms. Bland asked if he knew who shot him, Gervins stated that it was "Ice" who shot him and that she was not to tell anyone.

She stayed on the phone with him until the paramedics arrived a few minutes later and the phone was hung up. T. at 385.

{¶ 15} Ms. Bland went to the hospital to be with Gervins and was accompanied by a number of his friends and family. One individual she spoke with at the hospital was "Blaze." T. at 387. Because "Blaze" was the last person she had seen Mr. Gervins with that day, she spoke with him about what had transpired. She then provided that information to Gervins' sister (Dena Bronaugh) and to detectives from the Delaware County Sheriff's Office. T. at 387- 388.

{¶ 16} Ms. Bland stayed with Mr. Gervins at the hospital most of the week that followed the shooting. During that time he was intubated and unable to breath without the assistance of a tube down his throat. Ultimately, Mr. Gervins succumbed to his injuries on November 18, 2012. T. at 389.

{¶ 17} Dr. Gerston testified that Gervins was shot in the lower-mid back. The bullet travelled at an upward trajectory perforating the liver and the right lung of Gervins. T. at 472-474. This would have caused continuous internal bleeding, difficulty breathing, and immobility in a matter often to fifteen minutes. T. at 475. Despite efforts to save Gervins' life, he ultimately died as a result of the gunshot wound to the back. T. at 477.

{¶ 18} In the days immediately after the shooting, Detectives from the Delaware County Sheriff's Office began to make use of the leads provided by Gervins' family at the hospital. Det. Gannon used the contact information provided by Gervins' family and subpoenaed Conley's call detail records for the relevant timeframe. T. at 1219-1220.

When he received information that Jermaine Kelly may have been involved in the shooting, he obtained historical cell phone records for Kelly as well. T. at 1221. Det. Gannon also subpoenaed Gervins' cellphone records.

{¶ 19} The records identified numerous calls between Conley and Gervins and between Conley and Kelly on the date of the shooting. These records were ultimately given to Det. Moledor for cell phone mapping. T. at 1223. Det.

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