Johnson v. Bagley, 06-3846.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation544 F.3d 592
Docket NumberNo. 06-3847.,No. 06-3846.,06-3846.,06-3847.
PartiesRayshawn JOHNSON, Petitioner-Appellee/Cross-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.
Decision Date10 October 2008
544 F.3d 592
Rayshawn JOHNSON, Petitioner-Appellee/Cross-Appellant,
Margaret BAGLEY, Warden, Respondent-Appellant/Cross-Appellee.
No. 06-3846.
No. 06-3847.
United States Court of Appeals, Sixth Circuit.
Argued: June 3, 2008.
Decided and Filed: October 10, 2008.

[544 F.3d 594]

ARGUED: Adam Michael Van Ho, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellant. Ruth L. Tkacz, Ohio Public Defender's Office, Columbus, Ohio, for Appellee. ON BRIEF: Michael S. Warbel, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Ruth L. Tkacz, Ohio Public Defender's Office, Columbus, Ohio, W. Joseph Edwards, Law Office of W. Joseph Edwards, Columbus, Ohio, for Appellee.

Before: SILER, CLAY, and SUTTON, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which CLAY, J., joined. SILER, J. (pp. 607-09), delivered a separate opinion concurring in part and dissenting in part.


SUTTON, Circuit Judge.

A jury convicted Rayshawn Johnson of the murder of Shanon Marks and sentenced him to death. The Ohio courts upheld his conviction and sentence on direct review. In reviewing Johnson's habeas petition, the district court rejected all of Johnson's claims but one: It granted the writ on the ground that he received ineffective assistance of counsel at the penalty phase of his trial. We agree and affirm.


On Wednesday, November 12, 1997, Norman Marks prepared for work, roused his wife Shanon from bed at 6:50 a.m. and left their Cincinnati home without locking the back door. While Shanon was still in her bathrobe, Rayshawn Johnson, wearing gloves and carrying a baseball bat, jumped the fence that separated the Marks' residence from his grandmother's home (where he lived), entered the back door of the Marks' house, climbed the stairs to the second floor bathroom and murdered Shanon by repeatedly striking her with the bat. When Norman returned home at approximately 8:00 p.m. that evening, he found Shanon lying face down on the bathroom floor with the contents of her purse strewn across the bed.

It did not take long to link Johnson to the crime. After Johnson appeared on a number of local news broadcasts expressing his dismay at the crime, officers interviewed him and, during the interview, noticed that the soles of his Nike Air Jordans resembled a shoe print lifted from the crime scene. After the broadcasts aired, another woman, Nicole Sroufe, called the police and told the officers that Johnson had robbed her two months earlier. The investigation closed when the officers called Johnson to the police station, where

544 F.3d 595

he waived his Miranda rights and confessed to the murder.

An Ohio grand jury indicted Johnson on several counts, including aggravated murder with two capital specifications—that the murder occurred during the commission of an aggravated robbery and an aggravated burglary. In May 1998, a jury convicted Johnson on all counts and recommended the death penalty. The trial judge accepted the recommendation and sentenced Johnson to death.

Johnson appealed his conviction to the Ohio Supreme Court, arguing (among other things) that misconduct by the judge and the prosecutor denied him a fair trial and that his counsel conducted a constitutionally ineffective penalty-phase investigation. See State v. Johnson, 88 Ohio St.3d 95, 723 N.E.2d 1054, 1072-73, 1076 (Ohio 2000), cert. denied, 531 U.S. 889, 121 S.Ct. 212, 148 L.Ed.2d 149 (2000). The court rejected each claim and independently determined that Johnson's death penalty was appropriate. Id. at 1077-78. In state post-conviction proceedings, Johnson raised a claim of judicial bias and renewed his ineffective-assistance claim, submitting additional evidence and affidavits. State v. Johnson, No. C-000090, 2000 WL 1760225, at *3-9, *11 (Ohio Ct.App. Dec.1, 2000). The Ohio Court of Appeals denied each claim, id., and the Ohio Supreme Court denied review, 91 Ohio St.3d 1481, 744 N.E.2d 1194 (Ohio 2001).

Johnson petitioned for a writ of habeas corpus. The district court granted relief on Johnson's ineffective-assistance claim but denied his other claims. When the warden appealed the district court's grant of the writ, Johnson (after receiving a certificate of appealability) cross-appealed the denial of his judicial-misconduct, judicial-bias and prosecutorial-misconduct claims as well as the denial of his motion to amend the petition.


Because Johnson filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), we may grant the writ with respect to claims "adjudicated on the merits in State court proceedings" only if the state-court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). We start by addressing the claims denied by the district court because they affect Johnson's conviction and sentence.


Johnson premises his judicial-misconduct claim on the ground that the state-court trial judge gave a ride to a juror who had missed her bus. After the first day of trial, Johnson returned to his cell and watched (from his window) as Judge Ruehlman stopped at the bus stop and picked up a female juror who had been waiting there. The next morning, Johnson told his attorneys about the encounter, after which they raised the issue with the judge. The judge explained that the juror had missed her bus, that she was alone in the downtown area and that he offered her a ride because it was about to start raining. After the judge stopped his car, he explained, the juror confirmed with another bus driver that she had missed the last bus heading in her direction, and the judge said, "Get in, and we won't talk about the case." JA 2688. At defense counsel's request, the judge brought the juror into his chambers and asked her if they had

544 F.3d 596

"talk[ed] about the case." JA 2696. "No, not at all," the juror insisted. Id. After giving the defense attorneys a chance to question the juror, the judge denied their request to excuse the juror, agreeing with the prosecution that the gesture was "a common act of courtesy" and caused no harm because they "didn't talk about the case." JA 2696, 2698.

While we think it odd, unwise, maybe even improper, for the trial judge to have given the juror a ride, the Ohio Supreme Court did not unreasonably apply federal law in holding that Johnson still received a fair trial. Not every "ex parte conversation between a trial judge and a juror" violates the Constitution, United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), and communications with a juror are presumptively prejudicial only when they concern "a matter pending before the jury," Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). The trial judge gave Johnson a hearing on the impact of the ex parte contact, cf. Remmer, 347 U.S. at 229, 74 S.Ct. 450, and during that hearing both the judge and the juror stated several times that they did not talk about the case, see, e.g., JA 2689 (Judge Ruehlman stating "[w]e didn't talk about the case at all"); JA 2694 (Judge Ruehlman saying "we didn't talk about anything"); JA 2696 ("I'm saying as an officer of the Court I didn't talk about the case."); JA 2696-97 (Juror Miller answering "No" repeatedly when asked whether she and the judge discussed the case). On top of all this, the judge explained that he merely wanted to help a juror in need.

In certain circumstances, we recognize, ex parte communications with jurors have special risks, such as when the jury is deliberating. See, e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 460, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) ("Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error."). But no one suggests that this contact occurred at such a sensitive stage of the case.

The trial judge did not help matters, as Johnson points out, when he failed to report the contact first and when he failed to assign another judge to investigate the propriety of, and prejudice resulting from, the juror contact. But the uncontradicted fact remains that the judge and juror did not talk about the case, and these after-the-fact actions of the judge remain consistent with his underlying belief, naive though it might have been, that this kind of helping-hand juror contact need not be disclosed or investigated seriously. And while the assignment of another judge to preside over the Remmer hearing undoubtedly would have helped clear the air of even a hint of impropriety, the reality is that Johnson made no such request and, at any rate, the Ohio Supreme Court reviewed the trial judge's actions. As to both claims, moreover, Johnson remains in the rut of failing to identify a Supreme Court precedent that requires reversal or that the state courts unreasonably applied. We affirm the district court's rejection of this claim.


Johnson next claims that the trial judge held a bias against him and prejudged his guilt. In support, he relies on an affidavit in which a juror says that at times he "felt that the defense's argument wasn't going anywhere" and the judge's "facial expressions" sometimes "seemed to confirm" that belief, JA 3786, as well as on the following statements by the judge: (1) a statement by the judge that it was "amazing" that Johnson continued to watch females from his cell window in a manner that resembled his observation of Shanon Marks and

544 F.3d 597

Nicole Sroufe before he committed the crimes, JA 2693; (2) the judge's comment that Johnson's alleged assault of Sroufe was "chillingly similar" to the Marks murder, JA 1561; (3) a...

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