Houston v. Cool

• Docket Number: 1:22-cv-143
• Decision Date: 15 July 2022
• Parties: SHAWNDRE HOUSTON, Petitioner, v. BILL COOL, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

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SHAWNDRE HOUSTON, Petitioner, v. BILL COOL, Warden, Respondent.

No. 1:22-cv-143

United States District Court, S.D. Ohio, Western Division

July 15, 2022

Douglas R. Cole District Judge

REPORT AND RECOMMENDATION

MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

This habeas corpus case, brought by Petitioner Shawndre Houston with the assistance of counsel, is before the Court for decision on the merits of the Amended Petition (ECF No. 5) the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner's Reply (ECF No. 14). The Magistrate Judge reference in the case was recently transferred to the undersigned to more evenly distribute the Magistrate Judge workload in the District (Transfer Order ECF No. 12).

Litigation History

On February 3, 2017, the Hamilton County grand jury indicted Houston on one count of aggravated murder in violation of Ohio Rev. Code § 2903.01(A) (count 1), two counts of murder in violation of Ohio Rev. Code § 2903.02(A) and (B) (counts 2, 3), one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(2), (count 4), and one count of having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A)(3) (count 5). Counts 1 through 4 carried a firearm specification.

On Houston's motion, Count Five was severed and tried to the bench. Houston was convicted and sentenced to twenty-four months imprisonment. After a mistrial, a new jury convicted Houston on the remaining charges (except for one firearm specification) and he was sentenced to twenty-five years to life for aggravated murder and one year on the firearm specification. On direct appeal, the Ohio First District Court of Appeals affirmed. State v. Houston, 2020-Ohio-5421 (Ohio App. 1st Dist. Nov. 25, 2020), appellate jurisdiction declined, 162 Ohio St.3d 1411 (2021).

On February 23, 2021, Houston filed a pro se application to reopen his direct appeal in the Ohio Court of Appeals under Ohio R. App. P. 26(B), raising two claims of ineffective assistance of appellate counsel. The First District Court of Appeals denied the Application on June 24, 2021 (Entry, State Court Record, ECF No. 10, Ex. 22). Neither the Return of Writ nor the LEXIS database indicates whether Houston appealed to the Supreme Court of Ohio.

Houston filed his original Petition for writ of habeas corpus in this Court March 20, 2022 (ECF No. 1). As pleaded in the Amended Petition, he raises the following claims for relief:

Ground One: The conviction lacks legally sufficient evidence violating the right of due process.

Supporting Facts: There was no evidence to support the required element of "prior calculation and design." There was no evidence that Houston was the shooter where shots were fired from a vehicle with another occupant. There was no physical evidene [sic] connecting Houston to the shooting.

Ground Two: The admission of prejudicial photos violated the right to a fair trial and due process Supporting Facts: Multiple gruesome photographs from the autopsy were admitted to inflame the jury and appeal to their emtions [sic]. The cause of death was not an issue in this case. The photos were not introduced to prove any fact at issue, but to create revulsion in the minds of the jury members. This unconstitutionally prejudiced Houston's right to a fair trial and to due process of law.

Ground Three: Houston was denied the effective assistance of counsel.

Supporting Facts: Trial counsel obtained information from a juror suggesting that the verdict announced in court was not the verdict of the individual juror. Counsel failed to motion for the verdict to be set aside and failed to request that the court inquire regarding the validity of the verdict.

Ground Four: The jury verdict was not unanimous.

Supporting Facts: After the trial a juror approached defense counsel and disclosed that the verdict announced by the court was not the verdict of the juror. The juror was emotional and offered that she was pressured during deliberations.

Ground Five: The court's failure to provide the requested jury instructions deprived Houston of the right to a fair trial and due process.

Ground Six: Houston was deprived of his right to the effective assistance of appellate counsel.

(Amended Petition, ECF No. 5, passim).

Analysis

Ground One: Conviction on Insufficient Evidence

In his First Ground for Relief, Houston claims there was insufficient evidence to identify him as the shooter or to show prior calculation and design.

The First District Court of Appeals decided both these issues on the merits, concluding:

{¶17} In his first assignment of error, Houston contends that the evidence was insufficient to support his conviction. First, he argues that the state failed to present sufficient evidence to prove prior calculation and design.

{¶18} Houston was convicted of aggravated murder under former R.C. 2903.01(A). It provided that “[n]o person shall purposely, and with prior calculation and design, cause the death of another * * *.” To show prior calculation and design, the state must show a “scheme designed to implement the calculated decision to kill.” State v. Coley, 93 Ohio St.3d 253, 263, 754 N.E.2d 1129 (2001). Evidence of purpose does not automatically mean that the element of prior calculation and design also exists. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295 82 N.E.3d 1124, ¶ 17. “All prior calculation and design offenses will necessarily include purposeful homicides; not all purposeful homicides have an element of prior calculation and design.” State v Jones 2020-Ohio-281, 151 N.E.3d 1059, ¶ 11 (1st Dist.) quoting Walker at ¶ 18. The phrase “prior calculation and design” suggests advance reasoning to formulate the purpose to kill. Evidence of an act committed on the spur of the moment or after momentary consideration is insufficient. Walker at ¶ 18.

{¶19} The Ohio Supreme Court has repeatedly held that there is no “bright-line test that emphatically distinguishes between the presence or absence” of prior calculation and design. Instead, each case turns on its own facts. Walker at ¶ 19; State v. Taylor, 78 Ohio St.3d 15, 20, 676 N.E.2d 82 (1997); Jones at ¶ 13. In determining whether a defendant acted with prior calculation and design, courts should consider three factors: (1) Did the accused and the victim know each other, and if so, was that relationship strained? (2) Did the accused give thought or preparation to choosing the murder weapon or murder site? and (3) Was the act drawn out or “an almost instantaneous eruption of events?” Walker at ¶ 20; Taylor at 19; Jones at ¶ 13.

{¶20} Nothing in the record shows that Houston and Salter knew each other prior to the fight. During the fight, Salter punched Houston several times, and Houston had a black eye and other injuries. Security had broken up the fight and forced the participants out a side door. Outside, security guards formed “a wall” between Salter and some of the other participants, including Bush. According to Long, Salter was trying to de-escalate the situation, telling his friends to calm down.

{¶21} When told to leave, Houston walked to his car, turned on the dome light, and appeared to be searching for something on or around the driver's seat. He drove his car through the lounge parking lot and the parking lot of the motel next door. He circled around the lot and passed the lounge entrance at least two, possibly three times. As soon as Salter started running away from the building, Houston drove by him with the driver's side of the car facing Salter. Salter was about two feet away from Thompson when Thompson saw a muzzle flash from the driver's side of the car and heard four or five gunshots. Salter fell to the ground bleeding and Houston drove away at a high rate of speed.

{¶22} The evidence showed that Houston gave thought and consideration to choosing the murder site and that the act was drawn out, rather than an instantaneous eruption of events after the fight. Compare Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, at ¶ 23-26 (No prior calculation and design when the evidence showed a “free-for-all” and a shot was fired in the midst of the fight). Even though only a short period of time had passed, the facts were sufficient to show that Houston had “adopted a plan to kill.” See State v. Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶ 17. Thus, the state presented evidence from which a jury could reasonably have concluded that Houston acted with prior calculation and design.

{¶23} Houston next argues that there was no evidence showing that he was the assailant, and that, in fact, the evidence showed that Bush was the shooter. The eyewitnesses stated that Houston was driving the car and that Bush was seated in the back seat on the driver's side. Thompson saw Houston looking around the car for something before he got inside. Video footage showed that the driver's-side window was down right before the shooting and the back-seat window was closed. The flash came from the driver's seat. When the car was pulled over after the shooting, the back window on the driver's side was intact, indicating that a bullet had not been shot through the window.

*4 {¶24} After Houston walked to his car, Bush continued to act aggressively. Thompson said that when he put his hands on Bush, he felt what may have been a weapon under his coat. Bush continued to try to attack Salter, but was prevented from doing so by the security guards. Bush threatened Salter and the security guards, stating that “I carry heat.” When Bush continued to be aggressive and refused to leave, Long tased him, although the Taser had little effect because of Bush's coat. But even after Long attempted to tase him, Bush did not show a weapon of any kind. Instead, he got

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