Wilson v. Warden

ANTHONY WILSON, Petitioner, v. WARDEN, London Correctional Institution, Respondent.

Case No. 3:13-cv-217

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

August 27, 2015

District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Wilson has filed a Petition (ECF No. 2), an Amended Petition (ECF No. 4), and an additional Amended/Supplemental Petition (ECF No. 11-1). Respondent has filed the State Court Record (ECF Nos. 12, 30, & 31) and an Answer/Return of Writ (ECF No. 32). The Court set a date of twenty-one days after the Answer for Wilson to file a reply (Order, ECF No. 29, PageID 3472). That time expired August 17, 2015, but no reply has been filed.¹ The case is accordingly ripe for decision.

Wilson pleads the following thirty-five grounds for relief:

GROUND ONE: Petitioner alleges that he was given ineffective assistance of appellate counsel throughout the compulsory legal process.

Supporting Facts: Appellate counsels failed to challenge the state-court proceedings within their entirety. Counsel did not attackor facially challenge the conviction by way of raising meritorious claims or assignments of error on appeals.

GROUND TWO: Petitioner alleges that he [sic] his rights were not protected under the Sixth Amendment in all stages of the legal process due to ineffective assistance of counsel.

Supporting Facts: Trial counsel permitted the petitioner to be convicted of charges which were not contained legally within the judgment entry and opinion of the trial court. Namely, counsel permitted petitioner to be sentence to offenses that is contrary to the findings of the jury and/or as enumerated by the Ohio Revised Code. Further, counsel permitted Prosecutors to withhold discovery materials, failed to obtain witnesses statements, failed to subpoena witnesses, failed to investigate witnesses, failed to investigate tangible items, failed to acquire all tangible items, allowed the trial court to forbid a public tribunal of the legal proceedings, obtain experts, allowed jury misconduct, sustain a proper defense, and failed to advise Petitioner of a plea deal negotiation in violation of Ohio and United States Constitutions Due Process Clauses.

GROUND THREE: The Judgment Entry entered by the Trial Court does not comport with the requirements imposed by the Ohio General Assembly within its charged authority to legislate and promulgate R.C. § 2505.02.

Supporting Facts: The judgment of the trial court is not a final appealable order under the definition of Ohio law, as it fails to comport to the requirements imposed by R.C. § 2505.02 and Ohio Criminal Rule 32.

GROUND FOUR: The judgment is void, as the judgment of the Montgomery County Common Pleas Court lacked jurisdiction to impose any sentence.

Supporting Facts: The Ohio General Assembly has set forth a compulsory process for the judiciary within the State of Ohio. Failure to comport to the requirements and processes set forth by the General Assembly and the Supreme Court of Ohio, renders any judgment to be nugatory, void or surplusage. The criminal judgment within this matter is such a judgment; due absence of subject matter jurisdiction to impose the instant sentence.

GROUND FIVE: The conviction for complicity to felonious assault was against the manifest weight of the evidence and theevidence was insufficient to support appellant's conviction for felonious assault.

Supporting Facts: The conviction as a result of the trial was mitigated by the fact that the State Prosecutor erased the surveillance videos which provided real-time evidence of the events as they actually occurred; additionally the State purposefully allowed a witness to testify regarding the contents of the 39 Central Street surveillance video without defense counsel being given the opportunity to challenge the authenticity of completeness of the recording or present a rebuttal expert to testify, as to the recordings on their factual accuracy or in complying with the requirements of the Ohio Rules of Evidence. The State altered, misstated and manipulated the evidence to sustain an indictment and conviction that did not corroborate the witnesses statements and evidence.

GROUND SIX: Ohio Courts showed complete prejudice towards Petitioner when it determine a witness misspelled name was not newly discovered evidence when Petitioner acted in complete due diligence for the motion for leave to file a motion for new trial.

Supporting Facts: Eugene Talbott testified during the preliminary hearing and as well as at trial that a person by the name of "Ryan Davis" was there when the incident occurred. During the evidentiary hearing for the motion for leave Petitioner testified that he became aware of the witness correct name by being incarcerated with him at the same prison facility (LoCI) located in London, Ohio. Petitioner never knew that Davis' real name was actually "Brian Davis," which prevented a subpoena from being filed during trial under his legal correct name. Petitioner acted due diligently to procure the existence of partial witness name who had complete valuable information about the alleged conduct of the Petitioner during the night in question. This information should have been accepted as being newly discovered testimony that was not available at trial for Petitioner to utilize due to the extreme differences of the spelling and pronunciation of the name "Ryan" and "Brian."

GROUND SEVEN: The State of Ohio withheld exculpatory materials, as well as the Gun Shot Residue Test (GSR) analysis of the Petitioner taken within a time before and after arrest. Therefore, this resulted in a material prejudice to the Petitioner.

Supporting Facts: The results of the Gun Shot Residue Test (GSR) analysis and other scientific analysis conducted were neverremitted during discovery to the Petitioner, which resulted within material prejudice to the rights of the Petitioner. This evidence could have altered the outcome of the trial or such other criminal proceedings within this matter.

GROUND EIGHT: The trial court erred in refusing to instruct the jury on the affirmative defense of defense of another; the lesser included offense of assault; and the inferior degree offense of aggravated assault.

Supporting Facts: The trial court abrogated rights conferred under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States, by refusing to instruct the jury as to a lesser included offenses when the evidence, documents, testimony, and reports support the instructions of an inferior degree offense to be considered by the jury during deliberations. Testimony at trial validated that Petitioner was being shot at be other individuals and sustained injuries before the victim in this matter was even harmed.

GROUND NINE: The trial court erred in refusing to permit defense counsel to impeach a witness, Eugene Talbott, by the prior criminal history of the witness.

Supporting Facts: The State of Ohio violated the Fifth and Fourteenth Amendments of the United States Constitution, by failing to permit counsel to the Petitioner to attempt to impeach the testimony of a witness for the State of Ohio; due the witness acknowledging his prior convictions, should have precluded the testimony within its entirety. This resulted in material prejudice.

GROUND TEN: The trial court erred by admitting the hearsay testimony of Moonlight Security guard Jason Morris, Officer Gregory Thornton, and all others regarding the contents of the surveillance videos. The State asserted the Best Evidence Rule, that these parties were in-effect experts attesting to the authenticity and content of the recordings; while these parties was never qualified as an expert witness to implicate or utilize the Best Evidence Rule.

Supporting Facts: The State of Ohio was permitted to admit the testimony of witnesses as to content and authenticity of video evidence, without being qualified as an expert of first-hand witnesses of the events on the date offense. None of these parties was an expert in the authentication of video evidence; therefore, this resulted in material prejudice to the compulsory process andoffended the Constitutional rights of the Petitioner. When the Detective stated in the preliminary hearing that he possessed all the surveillance videos to what occurred on Central Avenue.

GROUND ELEVEN: The State of Ohio selectively and vindictively prosecuted Petitioner, however, by clear and convincing evidence pointed to alternate suspects, and the State punished Petitioner beyond the normal means of the Ohio and United States Constitution.

Supporting Facts: The State of Ohio and its agents selectively and vindictively prosecuted Petitioner when the evidence clearly pointed to alternative suspects to be the cooperates other than Petitioner, the State refused to acknowledge these perpetrators during their review of the case to seek charges, indictments, and convictions through Brady violations. The eyewitnesses testified that they did not observe Petitioner with a weapon at all that night of the offense. As such, the description given to police of the actual party who possessed the weapon, did not meet the description of the Petitioner. The description given by Witness Strobridge, matched the individual apprehended that night, with a weapon a 9mm Ruger, behind the "Met" building. Therefore, there was insufficient evidence from the surveillance video retrieved from 50 Central Street to show any corroborative evidence that the Petitioner was firing any weapon on the night of the offense.

GROUND TWELVE: The trial court violated the intent of the Ohio General Assembly, by imposing financial sanctions without documentary evidence.

Supporting Facts: The Ohio General Assembly has promulgated a process for imposition of financial sanctions within R.C. § 2929.19. The imposition of financial sanctions must be independently predicated

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