Bunting upset - Disappointed with McGregor’s transfer from St James
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We still both dated other people in that week, and probably had a few lingering dates that second week, but for all intents and purposes: My experience is far from typical. Even online dating commercials would look at us and say "that isn't believable enough". Appellant challenges an order finding him to be a mentally ill person. We review de novo, State v. Appellant is 59 years old. He has no history of prior civil commitment.
In Novemberappellant suffered a seizure at the Portland airport and was taken to the hospital. There he was placed on a two-physician "hold," in part because he "cannot walk without assistance but thinks he can, [has a] high risk of hip fracture, [and] cannot cooperate [with] medical treatment.
James Russell v. Jason Bunting, No. (6th Cir. ) :: Justia
The investigator found physical problems, such as uncontrollably shaking hands, liver dysfunction, thrombocytopenia, Wernicke-Korsakoff syndrome, and foot-drop. As to appellant's mental status, she noted that he suffered from short-term memory loss, "little insight and poor judgment about his ability to care for himself.
Based on her evaluation, the investigator concluded that appellant is a danger to himself and unable to provide for his basic needs. At the commitment hearing, testimony by family members supported a history of alcohol abuse.
Appellant's daughter testified that she took appellant for a three-week inpatient alcohol treatment program in September That was followed by an outpatient program.
However, appellant started drinking within six or seven weeks and lied about going to treatment. Appellant's testimony reveals alcohol abuse beginning in at least He stated that his longest period of sobriety was one and one-half years, just prior to entering inpatient care in He said that the outpatient care worked well, as he was sober for eight months overall. He agreed that drinking makes walking more difficult. He also admitted to having the seizure at the airport and that the doctor told him it was caused by alcohol.
At the time of the seizure, he said he was drinking about one-half of a fifth of vodka a day. He denied that he has any medical problem due to his drinking.
The medical examiners were split on whether appellant should be committed. Both found mild memory impairment. One examiner, Carlyle, concluded that appellant should not be committed, although appellant's "drinking is clearly destructive and causing a deteriorating physical and mental condition. In reaching this conclusion, McCubbin stated: I believe he is endangering his life [and] health due to his dependence.
I do not believe he has the judgment and [he] is addicted to alcohol and will not cooperate with voluntary outpatient treatment.
In support of that conclusion, the court stated: I think you're going to die. And then went into the questions of, what would happen if everyone else felt one way but you felt strong the other way, would you give in or stand up? And the juror answered, I would stand up and explain my feelings.
What you do is find a difference between a juror and everyone else, highlight it, and then say, would you stand firm? And those combination of reasons that we -- that I had mentioned, all together led me to my decision of wanting this juror removed.
He asked this juror none. She was 31 years old. But I will listen to the others. Third Appeal Russell appealed—this time, through counsel—raising only a Batson issue. The Ohio Court of Appeals concluded that the trial court erred in finding that Russell had failed to establish a prima facie case of racial discrimination. Thus, Russell claimed that his counsel provided ineffective assistance by failing to reassert the merger argument with respect to the felony murder and aggravated robbery convictions in light of the intervening change in law.
The Ohio Court of Appeals denied the motion. The court also reasoned that a renewal of the sentencing argument would have been outside the scope of the third appeal because the second appeal resulted in a remand only on the Batson issue. Russell did not seek leave to appeal in the Ohio Supreme Court. Second Batson Hearing At the second Batson hearing, the prosecutor requested that the court consider the retrial voir dire and initial Batson hearing records, and then reiterated his explanations for the peremptory challenge.
He said that Pasqual had the appearance of being very, very young. This particular trial was in April or May of the following year and she had still not worked. So she kind of was on [his] radar screen because of her youthful appearance and again [he] wanted somebody usually more mature or seasoned.
Counsel also emphasized that Pasqual, after stating that she was not easily persuaded, said that she would listen and remain open to changing her mind if she found the testimony credible. It also noted approvingly that the jury included an African-American member and that the prosecutor admonished prospective jurors not to consider race while hearing the case.
James Russell v. Jason Bunting, No. 16-4022 (6th Cir. 2018)
Federal Habeas Petition With his convictions final in state court, Russell filed his federal habeas petition. Relevant to this appeal, Russell disputed the rejection of his Batson claim and alleged that he Case No. Bunting received ineffective assistance of appellate counsel in connection with his third appeal. Bunting Russell IVNo. Russell objected to the report and recommendation, prompting the district court to return the petition to the magistrate for further analysis.
Once again, the magistrate recommended denying the petition. Bunting Russell VNo. Ohio June 9, In conclusion, the magistrate recommended that the district court dismiss the habeas petition in full but grant Russell a certificate of appealability on the Batson issue.
Bunting by failing to reassert the merger-of-convictions-at-sentencing argument in the third appeal. May 30, order. Arguing that the state courts erroneously rejected his Batson claim that the peremptory strike of an African-American prospective juror evidenced discrimination, Russell seeks another retrial.
A Batson challenge to a peremptory strike necessitates a three-step, burden-shifting inquiry: First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race.
Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices.
Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. The parties do not dispute that the first two steps have been satisfied.