Lang v. Bobby

Edward Lang, Petitioner, v. David Bobby, Warden, Respondent.

Case No. 5:12 CV 2923

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

March 27, 2015

MEMORANDUM OPINION AND ORDER DENYING PETITION

JUDGE JACK ZOUHARY

INTRODUCTION

A jury convicted Petitioner Edward Lang of the 2006 murders of Jaron Burditte and Marnell Cheek, recommending that Petitioner be sentenced to death for Cheek's murder and life imprisonment without the possibility of parole for Burditte's murder. He now challenges the constitutionality of his convictions and sentence, pursuant to 28 U.S.C. § 2254. For the reasons below, this Court denies the Petition for Writ of Habeas Corpus (Doc. 16).

FACTUAL BACKGROUND

On direct appeal from his convictions and sentence, the Ohio Supreme Court described Lang's crimes as follows:

The state's case revealed that at 9:36 p.m. on October 22, 2006, Canton police officer Jesse Butterworth was dispatched to a traffic accident with injuries on Sahara Avenue in Canton. At the scene, Butterworth observed that a Dodge Durango had crashed into the back of a parked car. He discovered that the two people inside the Durango had been shot in the back of the head. They were later identified as Jaron Burditte, the driver, and Marnell Cheek, the front-seat passenger.

Police investigators found a bag of cocaine in Burditte's hand. Investigators examining the inside of the Durango recovered two shell casings in the backseat area and a spent bullet in the driver's side door pocket. Additionally, two cell phones were found in the car, and a third cell phone was found in Burditte's pocket.

One of the cell phones recovered from the Durango showed that calls had been received at 9:13 p.m. and 9:33 p.m., which was close to the time of the murders. Police learned that these calls had been made from a prepaid cell phone that was not registered in anyone's name. Phone records for the cell phone showed that two calls had been made to the phone number of Teddy Seery on the afternoon and evening of the murders.

On October 24, 2006, Sergeants John Gabbart and Mark Kandel interviewed Seery. Following that interview, the police identified Lang as a suspect in the murders.

At trial, Seery testified that he and Lang were together almost every day during the summer of 2006. Lang called Seery on the evening of October 22, but Seery did not recall what they discussed. On the morning of October 23, Seery was informed by another friend that someone had been murdered on Sahara Avenue. Lang came to Seery's house later that day.

During the visit, Seery asked Lang "what happened at Sahara," because Lang stayed in that area. Lang told Seery that "he killed two people up there" that "[t]hey were going to rob." Lang then described what had occurred: "[H]e had called the guy up and the guy came and he saw there was a girl in the car. The guy passed him up. He called him back. The guy came back around, and he got in the car." Lang then said that he had gotten into the car and had "shot them * * * [t]wice." However, Lang did not tell Seery whom he was with or explain why he had shot the two people.

The police obtained a warrant for Lang's arrest. On the evening of October 24, 2006, the police stopped Lang as he was parking his girlfriend's car at a local apartment. Lang gave police a false name when asked his identity, but police established his identity and arrested him. Police officers seized a 9 mm handgun and ammunition that had been wrapped inside a towel and were resting on the rear passenger floorboard of the car.

On October 25, 2006, Sergeants Gabbart and Kandel interviewed Lang. After waiving his Miranda rights, Lang told police that on October 22, Antonio Walker had come to his house and had told him "he had somebody that [they] could rob." Lang agreed to join him. After Walker gave him Burditte's phone number, Lang called Burditte and made arrangements to purchase a quarter-ounce of crack cocaine for $225. Burditte and Lang agreed to meet later that night "off of 30th Street and Sahara," and Burditte said he would call Lang when he got close to that location.

Lang stated that he gave his gun to Walker before they left the house because Walker had told him, "[A]ll [Lang] had to do was just be in the car with him basically." As they walked to the meeting location, Walker told Lang how the robbery was going to take place: Walker said they were going to get in the car and hold Burditte up, and he told Lang which direction to run afterwards.

After reaching the meeting location, Burditte called Lang and told him that he was "right around the corner." After Burditte drove past them, Lang said that Walker had called Burditte on Lang's cell phone and told him where they were. The car then pulled up in front of Lang and Walker. Lang then described what happened: "I walked like on the other side of the car [and] I get in the back seat behind the passenger and he got in the back seat behind the driver. * * * We jumped in the car and he put the gun up dude head [sic] and told dude that he wanted everything and like in a moment of seconds he fired two shots. And I jumped out the car."

Lang stated that they went to Walker's apartment after the shootings. Lang asked Walker why he shot the two people, and Walker said that "he felt as though dude was reachin' for somethin'. * * * And he wasn't * * * sure." Lang stated that he vomited in a bag. Lang also called "[his] home boy E" to get the gun melted down and disposed of. In the meantime, Walker wiped down the gun. Walker also told Lang that they needed to get rid of the cell phone, and Lang gave it to him. Walker then dismantled the phone and went outside to throw it in the dumpster.

During the interview, Lang told police that he was surprised that Walker had shot the victims because the "plan was just to rob him." Lang also said, "I did not wanna do it. * * * He wanted to do it. * * * I just went with him for, that was my gun I needed some money."

On October 26, 2006, Walker turned himself in to the police after learning that the police were looking for him. Walker then talked to the police about the murders.

At trial, Walker testified that on the evening of October 22, 2006, he, Lang, and Tamia Horton, a girlfriend of Lang, were at Horton's apartment. Lang had a gun out and said that he "needed to hit a lick" (commit a robbery) because he "needed some money." Lang mentioned that they could rob "Clyde," who was Jaron Burditte. Walker knew Burditte because they had been in the same halfway house together in 2004.

Walker agreed to help Lang rob Burditte because he was also "short on money." Their plan was to arrange to buy drugs from Burditte and then rob him when he showed up for the sale. Lang then called Burditte and arranged to buy a quarter ounce of crack cocaine from him later that night.

Shortly thereafter, Lang and Walker walked to their meeting location on Sahara Avenue. Lang loaded his 9 mm handgun while they waited for Burditte to arrive.

When Burditte's Durango drove past them, Lang called Burditte and told him where they were. Burditte then arrived at their location and stopped in front of Lang and Walker.

According to Walker, Lang got into the backseat on the driver's side of the Durango. Walker did not get into the Durango, explaining, "It didn't feel right to me." Walker then heard two gunshots and saw Lang get out of the vehicle and start running. Walker saw the Durango "crash[ ] up into the yard."

Lang and Walker separately ran to Horton's apartment. Lang vomited in the bathroom. Walker asked whether Lang was all right, and Lang said, "[E]very time I do this, this same thing happens." Walker testified that he never saw Lang's handgun after they reached his apartment. He also denied throwing away Lang's cell phone.

Michael Short, a criminalist with the Canton-Stark County crime lab, testified that none of the fingerprints collected matched Lang's or Walker's. Short also examined the handgun seized from Lang's vehicle and the spent bullet recovered from the Durango. He testified that testing showed that the handgun had fired the spent bullet. Testing also showed that the two cartridge cases found in the Durango's backseat had been ejected by this handgun.

Michele Foster, a criminalist with the Canton-Stark County crime lab, examined Lang's clothing. Blood was found on Lang's red T-shirt and pants, but DNA testing showed that it was Lang's blood. No blood was found on Lang's coat, knit hat, white T-shirt, or the athletic shoes that were taken from the car. Soiling was also noticed on Lang's athletic shoes, jacket, and pants.

Foster also examined Walker's clothing. She found no blood on the hooded sweatshirt or the athletic shoes that Walker said he was wearing on October 22. But tan-colored soiling with fragments of dried plant material was noticed on the exterior of both his shoes.

Foster conducted DNA testing of a swab taken from the trigger grips, slide, and magazine release on the 9 mm handgun. Foster detected low levels of DNA from at least two individuals on the swab. Foster testified, "Walker is not the major source of DNA that we detected from the swabbing of the pistol." She also testified, "[W]e can say that Edward Lang cannot be excluded as a possible minor source to the DNA that we found on the weapon." Because of the low level of DNA, Foster testified, "we can't say to a reasonable degree of scientific certainty that this person is the source. In this particular case, the chance of finding the major DNA profile that we found on that pistol is 1 in 3,461," which is to say that "1 of 3,461 people could possibly be included as a potential source of the DNA."

Dr. P.S.S. Murthy, the Stark County coroner, conducted the autopsies on Cheek and Burditte. Murthy testified that Cheek was shot at close range above the left ear. The gunshot traveled "left to right, downwards, and slightly backwards" and exited behind Cheek's right ear. Cheek's toxicology report was negative for the presence

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