Bohannon v. Warden, Allen/Oakwood Corr. Inst.

• Decision Date: 04 October 2013
• Docket Number: Case No. 1:12-cv-542
• Parties: JAMES BOHANNON, Petitioner, v. WARDEN, Allen/Oakwood Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JAMES BOHANNON, Petitioner, v. WARDEN, Allen/Oakwood Correctional Institution, Respondent.

Case No. 1:12-cv-542

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

October 4, 2013

Chief Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. After review of the Petition, Magistrate Judge Litkovitz ordered a return of writ (Order, Doc. No. 2). The Return was filed December 6, 2012 (Doc. No. 12). Petitioner then took three extensions of time to August 19, 2013, to file a reply (Doc. Nos. 13, 15, 17)¹ and the Court eventually received the Reply (Doc. No. 20) on September 30, 2013. In the meantime, the reference has been transferred to the undersigned (Doc. No. 19).

Bohannon pleads the following Grounds for Relief:

Ground One: the trial court erred to substantial prejudice of the defendant when it forced the Defense to use a peremptory challenge to remove a vireman [sic] who would not commit to fairness and impartiality, thereby violating the accused['s] constitutional right to a fair trial by jury.

Supporting Facts: While the prospective juror in the case at bar did not unequivocally state he could not be fair and impartial, his continuing reluctance to commit when pressed by the trial judge is not different than a flat statement that one can be fair and impartial. One is either wholeheartedly sure or one is not. What happened here is a surrender to the concept because of the judge's persistence rather than a sincere commitment. The venireman in question should have been excused for cause.

Ground Two: The trial court erred to the substantial prejudice of defendant by failing to make written jury instructions a part of the record.

Supporting Facts: Petitioner would submit that since there are [sic] no written record of what the jury had before it when it was deliberating, there was no proof of safeguard in place to ensure it had all the guidance it needed to make a decision. When examining the problem, with a record of written instructions we would indeed know whether the complete and correct elements of each crime were in front of the jury for them to deliberate upon.

Ground Three: The trial court erred to the substantial prejudice of defendant when it failed to properly instruct the jury on the elements of Aggravated Robbery.

Supporting Facts: Is a jury instruction on Aggravated Robbery fatally flawed when it fails to state that the accused must use or refer to the deadly weapon in question [?] When the trial judge gave his instructions to the jury, he simply said that the petitioner only had to have a firearm. Yet in the Ohio Aggravated Robbery statute, the perpetrator must not only in effect possess the firearm, but must also do one of the actions that follow the conjunctive word "and." A defendant has the right to expect that the trial court will give complete instructions to the jury.

Ground Four: The trial court erred to the substantial prejudice of defendant when it entered a conviction based upon insufficient evidence.

Supporting Facts: Is there sufficient evidence to convict when alleged victim could not identify the accused [?] Several of the victims could not identify Petitioner or changed their testimony, during proceedings in open court.

Ground Five: Trial counsel was ineffective for failing to request and present the testimony of an expert witness on the subject of eyewitness identification.

Supporting Facts: In petitioner's case, trial counsel should have called an expert witness on the subject of Eyewitness Identification because of the cross-racial identifications and several instances of the victims either being intoxicated or picking someone else in the photo lineup. The victims at trial changed their testimony doing in-court identifications and showed bias while on the witness stand.

Ground Six: The trial court abused it's [sic] discretion in failing to severe [sic] counts thus violating defendant's Sixth and Fourteenth amendment rights.

Supporting Facts: Petitioner was indicted with 22 counts for various crimes. Two counts on one indictment and 20 counts on a later indictment. Petitioner filed a motion for severence [sic] of the prejudicial joinder. The court denied this motion. If the counts would have been sevred [sic] Petitioner would not have been convicted. Because of the joinder evidence was allowed in that would not have been if charged and tried separately which prejudiced the petitioner with the jury, which clearly lost it's [sic] way from their questions to the judge on the record.

Ground Seven: Trial counsel was ineffective for failing to object to repeated and egregious misconduct by prosecutor during closing arguments, in violation of petitioner's Sixth and Fourteenth amendment rights.

Supporting Facts: The prosecutor's perpetual errors in closing were so numerous and blatent [sic] that there is no excuse for trial counsel not to have objected to comments. The prosecutors referred to things outside of evidence, pointed to comments that were never made by victims in open court, and referred to race to inflame the passions of the Eleven member White jury.

Ground Eight: The trial court erred when it entered a conviction against the manifest weight of the evidence, or sufficient evidence.

Supporting Facts: The trial court erred when it entered a conviction against the petitioner where there was little or no evidence to support the conviction. The victims statement against petitioner either was invalid or false, and didn't support the charged offense.

Ground Nine: The trial court erred to the substantial prejudice of the petitioner when it merged allied counts instead of vacating them.

Supporting Facts: The courts erred when they merged counts instead of vacating them as Ohio and United States law says. Petitioner went back for resentencing, where the trial court merged counts into the stronger (allied) (multiplicitous) Count. Petitioner argued at the resentencing that the counts that are merged should have been vacated.

Ground Ten: Petitioner was denied effective assistance of counsel as guaranteed by the U.S. Constitution when trial counsel did not call an alibi witness who could put the defendant at a different location at the time of the crime.

Supporting Facts: Petitioner submitted an affidavit of Kathy Dudley, witness and alibi that petitioner was at the bar The Dock Complex on the date of January 9, 2005 when it was alleged he committed the crime against B. S.. ²

(Petition, Doc. No. 1, PageID³ 18-25.)

Procedural History

Bohannon was indicted by a Hamilton County grand jury on numerous counts of sexual misconduct of various sorts, aggravated robbery, and kidnapping. In March 2007 a jury found him guilty on sixteen counts and he was sentenced to an aggregate term of ninety-nine years to life imprisonment. The convictions were affirmed by the First District Court of Appeals. State v. Bohannon, 2010 Ohio App. LEXIS 4278. (Ohio App. 1^st Dist. Mar. 11, 2009).⁴ The OhioSupreme Court declined jurisdiction over Bohannon's appeal to it. State v. Bohannon, 122 Ohio St. 3d 1521 (2009).

On August 1, 2008, Bohannon filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied the petition and the First District affirmed. State v. Bohannon, Case No. C-080955 (Ohio App. First Dist. Aug. 26, 2009)(unreported, copy at Return of Writ, Doc. No. 12-1, PageID 301-304.)

On June 1, 2009, Bohannon filed a pro se application to reopen his direct appeal to raise a claim that he received ineffective assistance of appellate counsel when his appellate attorney did not claim error in the failure to merge the kidnapping counts with the underlying counts. The First District found that assignment of error well taken and remanded the case for resentencing. State v. Bohannon, 2010 Ohio 4596, 2010 Ohio App. LEXIS 3919 (1^st Dist. Sept. 29, 2010). On November 15, 2010, Bohannon filed a second application for reopening which the First District denied. Bohannon appealed to the Ohio Supreme Court which declined to hear the case.

Bohannon was resentenced pursuant to the remand on December 14, 2010, and appealed, raising the claim that the allied offense counts should have been vacated instead of merged. The First District again affirmed. State v. Bohannon, Case Nos. C-110025, C-110026 (1^st Dist. Nov. 23, 2011)(unreported, copy at Return of Writ, Doc. No. 12-2, PageID 529-30.) The Ohio Supreme Court again declined to exercise jurisdiction. State v. Bohannon, 131 Ohio St. 3d 1399 (2012).

Bohannon filed a second petition for post-conviction relief on a date not discernible from the copy of the record (Doc. No. 12-2, PageID 563). The trial court dismissed that petition as untimely and an improper successive petition. The First District Court of Appeals affirmed the dismissal. State v. Bohannon, Case No. C-110458 (Ohio App. 1^st Dist. Mar. 2,2012)(unreported, copy at Return of Writ, Doc. No. 12-2, PageID 615-16). The Ohio Supreme Court again declined to exercise jurisdiction over an appeal. State v. Bohannon, 132 Ohio St. 3d 1424 (2012).

On February 21, 2012, Bohannon filed an application to reopen his direct appeal from the resentencing. The First District denied reopening. State v. Bohannon, Case No. C-110025 (Ohio App. 1^st Dist. Jul 20, 2012)(unreported, copy at Return of Writ, Doc. No. 12-2, PageID 701-03.) The Ohio Supreme Court again declined to consider an appeal. State v. Bohannon, 133 Ohio St. 3d 1468 (2012). The instant habeas Petition, which the Warden concedes is timely, was filed July 16, 2012.

Analysis

Ground One: Fair and Impartial Jury

In his First Ground for Relief, Bohannon alleges the State denied his right to a fair and impartial jury because the trial judge would not excuse for cause a venireman who would not or could not say definitively that he could be fair and impartial.

The Warden concedes that Bohannon preserved this claim for merits review in...