Wright v. Warden Warren Correctional Institution

Filing 10

REPORT AND RECOMMENDATIONS. It is respectfully recommended that the Petition bedismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied any requested certificate of appealability and that the Court certify any appeal would not be taken in objective good faith. Objections to R&R due by 3/15/2012. Signed by Magistrate Judge Michael R Merz on 2/27/2012. (mdf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEBRELLE WRIGHT,
:
Petitioner,

Case No. 1:11-cv-105
:

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

-vsWARDEN, Warren Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Jebrelle Wright is serving a sentence of twenty-three years to life on his
convictions by a jury for murder, felonious assault, and kidnapping in the Hamilton County
Common Pleas Court. He pleads the following Grounds for Relief:
Ground One: Petitioner was denied a fair trial when Evidence Rule
901, concerning Authentication, must require that the proponent have
personal or firsthand knowledge that a writing was made by a
particular individual before a trial court may permit it into evidence.
Ground Two: Petitioner was denied a fair trial when the trial court
violated the hearsay exception, codified in Evid.R.801(D)(2)(e),
allows the introduction of statements by a "co-conspirator" made
during the course of and in furtherance of the conspiracy. This
exception should require that the State make a substantial showing of
the existence of the conspiracy through independent means verses
[sic] a "prima facie" showing.
Ground Three: Petitioner was deprived of his rights under the Fifth
Amendment from Double Jeopardy as applicable to the states through
the Due Process Clause of the Fourteenth Amendment when the trial
court failed to apply Allied Offenses of Similar Import to Murder and
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Felonious Assault.
(Petition, Doc. No. 3, PageID 49-52.) On Judge Litkovitz’s Order, the Warden has filed a Return
of Writ (Doc. No. 8). Although granted time to do so, Petitioner had not filed a reply and the time
for doing so has expired.
The background facts of this case taken from the First District Court of Appeals opinion are
as follows:
[¶5] [Kierra] Anderson testified that on the evening of July 11, 2007,
she went to Findlay Park, located in the Over-the-Rhine area of
Cincinnati, with her toddler, Jakayla, and a friend. At the time,
Anderson was pregnant, and both she and Price believedincorrectly--that Price was the father of the unborn child. Weeks
before, in June, at Price's Aunt Eileen's house on McMicken Avenue
near Findlay Park, Price had demanded that Anderson abort the
pregnancy, but she had refused. The refusal prompted a beating by
Price, which centered on Anderson's stomach and included his threat
"to kill" the unborn baby. After this June assault, Anderson was
treated at Good Samaritan Hospital by Dr. Patrick Dawson, who
observed bruises on both sides of Anderson's abdomen and
determined that the baby she was carrying was healthy. Dawson told
Anderson to stay away from the father of the unborn child, whom
Anderson had blamed for her injuries. Anderson claimed that she had
tried to avoid Price after the June assault.
[¶6] While at Findlay Park on July 11, Anderson saw Price. He was
uncharacteristically nice to her and even rubbed her belly. Anderson
testified that Price had convinced her to go to a nearby apartment
with him, and that she had brought her child, her stroller, and food
that she had earlier purchased from an Arby's restaurant. When they
arrived outside the apartment building at 1818 Race Street, they
stayed there talking for a short time. Then they climbed the stairs to
apartment 317 and entered, leaving the stroller in the hallway. Almost
immediately upon entering the main room of the apartment, Anderson
was struck in the face by Wright, whom Anderson had never met.
When she called out to Price for help, he picked up Jakalya and gave
her to a man named James Hurt who was standing in the hallway
outside the apartment. Price then came back into the apartment, shut
the door, and joined Wright in kicking and punching Anderson.
When Anderson fell to the ground, Wright and Price repeatedly
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stomped on her stomach. While this was going on, Wright kept
calling Anderson "bitches," and Price said that she should have had
an abortion and that he was going "to kill" the unborn child. The
beating was so brutal that Anderson defecated on herself.
[¶7] Anderson claimed that she was able to escape when Chris
Barnes, the resident of the apartment who had been in a back room,
entered the front room, yelled for Wright and Barnes to stop, and was
then attacked by Wright. Anderson left the apartment, grabbed
Jakayla from Hurt, and started down the steps with Price in pursuit,
leaving her stroller, purse, and other belongings behind. As she
started down the steps, Price pushed her and she fell down the steps.
Price then started kicking Anderson again in the stomach while she
held Jakayla, saying that she should have had an abortion.
[¶8] Anderson eventually made it out to Race Street, where she
boarded a bus that was stopped on the street. The driver dropped her
off at the Hamilton County Justice Center, where Anderson ran into
the women's restroom and called 911.
[¶9] Anderson, who was not wearing a watch that evening, was not
able to provide the specific time of each event. And she admitted at
trial that she had lied to the police by initially claiming that Price and
others had forced her to go with Price to the apartment where she was
beaten.
[¶10] Cincinnati Police Officer Barbara Maleski testified that she had
received a dispatch around midnight on July 11, 2007, to respond to
the Justice Center. When she arrived, she saw the visibly pregnant
Anderson outside the women's restroom on her knees, crying and
distraught. Anderson complained of severe pain, was unable to
move, and screamed when she was touched. Feces were on her
clothes and her legs. Her top was torn, she was shoeless, and many
of her hair extensions were missing.
[¶11] Anderson was transported with Officer Maleski to University
Hospital by ambulance. En route, she told Maleski that she had been
assaulted by three black males and that she knew only one of them.
She identified the person she knew as Lonzo Pitts, who the police
later determined was Alphonso Price. Anderson said that Price was
the unwilling father of her unborn baby and had dragged her inside
a green building on Race Street where he had expressed his
unwillingness to be a father and beaten her with another individual.
Anderson clarified at this time that the third individual (Hurt) had not
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participated in the beating.
[¶12] Upon arriving at the hospital, Officer Maleski observed severe,
deep purple bruising on Anderson's arms, thighs, back and abdomen,
including bruising in the shape of a shoe or boot print on Anderson's
thighs. Anderson received prompt treatment from Dr. Michelle
Rosario. The doctor testified that she too had observed significant
bruising and swelling on Anderson's abdomen, lower back, and
thighs, and that some bruising was shaped as foot or boot prints.
[¶13] Dr. Rosario performed an ultrasound that showed that
Anderson was seven months' pregnant, but that the viable baby girl
that Anderson had been carrying was deceased. Labor was induced,
and Anderson delivered a stillborn baby she named Precious
Anderson. Dr. Rosario testified that she did not notice any
abnormalities in the baby, except that her skull felt like it had been
fractured. The coroner, Dr. Obinna Ugwu, confirmed that the viable
unborn baby had suffered a skull fracture. He opined, in a videotaped
deposition that was played at trial, that Precious had died as a result
of severe head injuries sustained from blunt impact to the head that
had been inflicted while Precious was in the womb, a short time
before her death. He also found that the placenta had been injured.
[¶14] Cincinnati Police Homicide Detective Kurt Ballman
investigated the attack and testified at trial. He and his partner,
Detective Jeff Schare, had visited Anderson in the hospital shortly
after her arrival. At that time, Anderson, who was "distraught" and
concerned about the baby she was carrying, described what had
happened to her in a green apartment building near Findlay Park. She
provided the detectives with the names of "L'il Al," whom she also
knew as Alfred Pitts, and "Jamie," later identified as James Hurt. She
informed them that she did not know the third man involved, but that
she would be able to identify him.
[¶15] Detective Ballman described Anderson as "beaten up pretty
bad," with visible injuries and swelling on her arm, abdomen,
shoulder, and face. Criminalist Barbara Mirlenbrink photographed
the injuries, and the photographs were admitted into evidence at trial.
[¶16] The police determined that "L'il Al" was Alfonso Price, and
Anderson identified him as one of her attackers after she was shown
his photograph. The police also located the green apartment building
where the attack had occurred. Detective Ballman testified that the
building had a long, steep stairwell. When he got to the top of the
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stairs, he saw Anderson's stroller. Near the stroller was the door for
apartment 317. The apartment belonged to Chris Barnes, who gave
the police permission to search it. At trial, Ballman described the
inside of the apartment as in shambles, with Anderson's purse and
shoes near the door and hair weave and fecal matter scattered on the
floor. Ballman also recovered inside the apartment a broken denim
belt for Anderson's clothing, Anderson's broken jewelry, an Arby's
bag, and blood stains.
[¶17] In the days following the beating, the police began a search for
Price. On July 17, 2007, James Hurt came forward and provided the
police with the names "Jebrian," "Jebron," and "L'il Bro" for the other
individual they were seeking.
[¶18] About two weeks later, a special police tactical unit located and
arrested Price at the Four Towers Apartments. Detective Ballman was
contacted and informed that Price was in custody. Ballman asked if
Price was with anyone with the first name Jebrell. Ballman was told
that Price was in an apartment with a Jebrell Wright. Wright was then
arrested.
[¶19] After Wright's arrest, police placed a photograph of him in a six
photograph lineup that was shown to Anderson and Hurt. Both
Anderson and Hurt identified Wright as an attacker first to the police
and again at trial.
[¶20] Chris Barnes, who resided in the apartment where the attack
had taken place, also identified Wright as Anderson's attacker at trial.
Barnes added that Wright had arrived first at his apartment that night,
and that he had told Barnes that Price would be arriving "shortly."
[¶21] The defense presented four witnesses. Keyona Thomas,
Wright's sister, testified that she was with Wright all day and evening
on July 11, 2007. According to Thomas, they had spent the day at
their mother's apartment on East 12th Street in Over-the-Rhine,
where they both lived, and they had gone to a playground with her
daughter from 5:00 p.m. until 8:30 p.m. They returned home together,
and she went to sleep at 11:00 p.m., believing that Wright was in his
bedroom.
[¶22] Sandra Smith testified that she had seen Anderson in Findlay
Park on the evening of July 11, 2007, and that Anderson had told her
that she was going to get an abortion. Price was with Anderson in the
park, rubbing her belly.
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[¶23] The two other defense witnesses, Ronkita Price and Johnrella
Jackson, testified that on July 11, 2007, they had observed Anderson
looking for Price at his Aunt Eileen's house several times.
[¶24] In rebuttal, the state presented over objection the testimony of
Deputy John Kampaus and Deputy Kenneth Pendleton. Kampaus
testified that he had been assigned to guard Wright and Price in the
courthouse holding facility when court was in recess during the trial.
On a lunch recess taken after jury voir dire, he had discovered a
handwritten note in the paper-towel dispenser of the holding facility's
restroom immediately after Price had exited from the restroom. The
note contained many details paralleling the facts in the case and
suggested a version of events about which one could testify that
would exonerate the pair. The note was admitted into evidence over
objection. Deputy Pendleton authenticated the videotaped
surveillance of the restroom area taken around the time the note was
recovered and a collection of still photographs that he had printed
from the videotape.
State v. Wright, No. C-080437, 2009 Ohio 5474, 2009 Ohio App. LEXIS 4635 (Ohio App. 1st Dist.
Oct. 16, 2009).
In the Return of Writ, the Warden concedes the Petition is timely filed and does not raise any
lack of exhaustion of procedural default defense. Thus this Court proceeds to a consideration of the
merits.

Grounds One and Two

In his First Ground for Relief, Wright asserts that the note found in the prisoners’ restroom
immediately after his co-defendant Price was there was not properly authenticated under Fed. R.
Evid. 901 and that its admission violated the hearsay rule because the State had not adequately
proved the co-conspirator exception to hearsay.
The Federal Rules of Evidence govern only trials in the federal courts; they do not apply to
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trials in state courts. The question of whether the note was properly admitted in evidence was
considered by both the trial court and the First District Court of Appeals as an Ohio evidentiary law
question. This Court cannot reconsider whether those courts were correct or not on a question of
Ohio evidence law.
Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.
§2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010);Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463
U.S. 939 (1983).

"[I]t is not the province of a federal habeas court to reexamine state court

determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Evidentiary questions generally do not rise to the constitutional level unless the error was
so prejudicial as to deprive a defendant of a fair trial. Cooper v. Sowders, 837 F.2d 284, 286 (6th
Cir.1988); Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); Bell v. Arn, 536 F.2d 123 (6th Cir.,
1976); Burks v. Egeler, 512 F.2d 221, 223 (6th Cir. 1975). Where an evidentiary error is so egregious
that it results in a denial of fundamental fairness, it may violate due process and thus warrant habeas
relief. Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007); Bugh v. Mitchell, 329 F.3d 496 (6th Cir.
2003), citing Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2000). Courts have, however, defined
the category of infractions that violate fundamental fairness very narrowly. Bugh, quoting Wright
v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993)(quoting Dowling v. United States, 493 U.S. 342, 352
(1990). “Generally, state-court evidentiary rulings cannot rise to the level of due process violations
unless they ‘offend[] some principle of justice so rooted in the traditions and conscience of our

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people as to be ranked as fundamental.’” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.
2000)(quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). The Supreme Court has defined very
narrowly the category of infractions that violate fundamental fairness. Bey v. Bagley, 500 F.3d 514,
522 (6th Cir. 2007), citing Dowling v. United States, 493 U.S. 342, 352 (1990)(Identification from
a trial which resulted in an acquittal could be introduced at second trial for similarities.)
Grounds One and Two are not cognizable in federal habeas corpus and should be dismissed
with prejudice.

Ground Three: Double Jeopardy

Wright was convicted of murdering Anderson’s unborn child and of felonious assault on
Anderson. He argued in the state courts that these were allied offenses of similar import and that
he had been sentenced on both in violation of Ohio Revised Code § 2941.25. In this Court he argues
that the dual convictions violate the Double Jeopardy Clause as follows:
In this case, Mr. Wright was convicted of committing Murder, as a
result of the unlawful termination of Ms. Anderson's pregnancy, and
Felonious Assault for causing serious physical harm to Ms.
Anderson. In this case, the only evidence of serious physical harm to
Ms. Anderson was as the result of the unlawful termination of her
pregnancy. Any other injuries she sustained did not meet the
definition of serious physical harm. This was even argued by the
State. There was one act, one victim and no separate animus for each
of these offenses. Therefore, according to this Court's ruling in
Cabrales and lower Court's subsequent interpretations of this ruling,
Mr. Wright state [sic] that he should have been sentenced only on the
murder count for a total sentence of fifteen years to life.
(Petition, Doc. No. 3, PageID 53.)
For the same reasons given with respect to Grounds One and Two, this Court cannot
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reexamine the correctness of the state courts’ interpretation of Ohio Revised Code § 2941.25
because that is a question of state law. However, unlike Grounds One and Two, multiple
convictions do implicate the federal constitution, to wit, the Double Jeopardy Clause which affords
a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165(1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause of the Fifth Amendment was held to be applicable to the States
through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784 (1969).
The test for whether two offenses constitute the same offense is “whether each offense
contains an element not contained in the other.” United States v. Dixon, 509 U.S. 688 (1993);
Blockburger v. United States, 284 U.S. 299 (1932). Where two offenses are the same for
Blockburger purposes, multiple punishments can be imposed if the legislature clearly intended to
do so. Albernaz v. United States, 450 U.S. 333, 344 (1981); Missouri v. Hunter, 459 U.S. 359, 366
(1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984); and Garrett v. United States, 471 U.S. 773, 779
(1985).
In this case, the Hamilton County Court of Appeals interpreted Ohio law as permitting
multiple sentences here when there were two victims, Kierra Anderson and her viable but unborn
baby. Petitioner’s argument is that all the injuries inflicted on Kierra Anderson were merely
incidental to the injuries inflicted on the baby and were not, in any event, serious enough to qualify
as “serious physical harm” under the Ohio felonious assault statute. The court of appeals dealt with
both of these arguments as follows:
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[*P34] "Serious physical harm" is defined in R.C. 2901.01(A)(5) as
"(a) [a]ny mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric treatment;
(b) [a]ny physical harm that carries a substantial risk of death; (c)
[a]ny physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity; (d) [a]ny physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement; (e) [a]ny physical harm that involves acute pain of
such duration as to result in substantial suffering or that involves any
degree of prolonged or intractable pain." The gravity and duration of
the harm separates "serious physical harm" from "physical harm."
R.C. 2901.01(A)(3).
***
[*P36] We decline to follow Winston because the jury instruction
approved in that case predates current law, which recognizes the fetus
as a separate crime victim in certain circumstances. [Footnote
omitted.] That said, the state's evidence sufficiently supported a
finding that Anderson's injuries rendered her temporarily and
substantially incapacitated as contemplated by R.C.
2901.01(A)(5)(c), and thus, the state showed "serious physical harm."
Anderson's body absorbed the same intense blow that cracked the
fetus's skull. The trauma inflicted by Wright was so severe that it
bruised Anderson's back and abdomen, injured her placenta, and
caused vaginal bleeding. Officer Maleski testified that when she had
located Anderson outside the women's restroom at the Justice Center,
Anderson was unable to move on her own. Anderson was
hospitalized for several days after sustaining this trauma and giving
birth to a stillborn female. We conclude that this evidence supported
a finding that Anderson's physical harm involved a temporary,
substantial incapacity and rose to the level of serious physical harm
as defined in R.C. 2901.01(A)(5)(c).
[*P37] Additionally, we hold that the evidence supported a finding
that Anderson's physical harm involved "acute pain of such duration
as to result in substantial suffering" and rose to the level of "serious
physical harm" as defined in R.C. 2901.01(A)(5)(e).
[*P38] Anderson described receiving a beating so severe that she
defecated on herself. She estimated that she was struck 20 times by
fist or foot and pushed down a flight of stairs. She described having
pain "everywhere"--"in my stomach and back, on my face, on my
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arms, on my legs." When Officer Maleski located Anderson outside
the women's restroom at the Justice Center, Anderson complained of
severe pain and screamed in pain when she was touched. Anderson
was transported to University Hospital, where she was admitted for
several days and treated by Dr. Rosario. In addition to finding
Anderson's fetus deceased, Dr. Rosario found "significant bruising
and swelling" on Anderson's "upper extremities," "abdomen," "lower
back," and "thighs." The coroner found trauma to the placenta. The
detectives who met with Anderson in the hospital testified that they
had also observed bruising and swelling all over her body. Officer
Maleski, who had photographed Anderson's injuries, identified at trial
the photographs showing red marks on Anderson's dark skin.
[*P39] The evidence presented at trial with respect to the gravity
and duration of Anderson's injuries was sufficient to prove that she
had suffered "serious physical harm" within the meaning of both R.C.
2901.01(A)(5)(c) and (e), and that Wright had inflicted it. Thus, we
reject Wright's argument that his felonious-assault conviction was not
supported by sufficient evidence.

State v. Wright, No. C-080437, 2009 Ohio 5474, 2009 Ohio App. LEXIS 4635 (Oct. 16, 2009).
Here the court of appeals determined that Ohio law permitted multiple punishments for harm
inflicted on separate victims in one course of conduct:
[*P62] In his fifth and final assignment of error, Wright argues that
the trial court erred by separately sentencing him for allied offenses
of similar import. Although the state proceeded against Wright for
offenses arising from a single course of conduct, each offense
involved a separate victim--the felonious assault of Anderson and the
murder of her unborn child. Thus, the offenses were of dissimilar
import and separate sentences were permitted. See State v. Jones
(1985), 18 Ohio St.3d 116, 18 Ohio B. 148, 480 N.E.2d 408.
Because Wright's allied-offenses argument is meritless, we overrule
his fifth assignment of error.

State v. Wright, supra. That holding is conclusive for double jeopardy purposes. Petitioner’s Third
Ground for Relief is thus without merit and should be dismissed.

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Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is
also recommended that Petitioner be denied any requested certificate of appealability and that the
Court certify any appeal would not be taken in objective good faith.
February 27, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P.
5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party’s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this procedure
may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v.
Arn, 474 U.S. 140 (1985).
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