Johnson v. Bobby, 2:08-cv-55

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtSARAH D. MORRISON, UNITED STATES DISTRICT JUDGE.
Decision Date28 December 2021
PartiesMARVIN G. JOHNSON, Petitioner, v. DAVID BOBBY, Warden, Respondent.
Docket Number2:08-cv-55

MARVIN G. JOHNSON, Petitioner,
v.

DAVID BOBBY, Warden, Respondent.

No. 2:08-cv-55

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

December 28, 2021


Chelsey M. Vascura, Magistrate Judge.

OPINION AND ORDER

SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action brought pursuant to 28 U.S.C. § 2254. This matter is before the Court for consideration of Petitioner's Amended Petition (ECF No. 86), Respondent's Return of Writ (ECF No. 91), and Petitioner's Traverse (ECF No. 131).

I. OVERVIEW

These proceedings began on January 17, 2008 when Petitioner filed a Notice of Intent to file a Habeas Corpus Petition. (ECF No. 2.) Petitioner filed his initial petition on September 28, 2008. (ECF No. 13.)

In a September 29, 2009 Opinion and Order, the Court dismissed as procedurally defaulted the following grounds for relief: fourteen, fifteen (subject to reconsideration), twenty-one, and twenty-two. (ECF No. 28.)

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granting Petitioner leave to depose his three trial attorneys as to several of his claims of ineffective assistance of trial counsel. (ECF No. 51). Those depositions were filed on April 19, 2011. The Court also granted Petitioner's request for funds for certain investigative and expert services. (ECF No. 40.) On February 27, 2012, the Court granted Petitioner's motion to expand the record, and directed that the Petition be stayed, and the proceedings held in abeyance pending Petitioner's return to state court to exhaust new claims. (ECF No. 65.)

Following the conclusion of those state court proceedings, the Court reinstated the instant case on July 6, 2015. After the state court record and trial transcripts were updated and re-filed, (ECF Nos. 82, 83, 85, and 88), Petitioner filed his Amended Petition on December 3, 2015 (ECF No. 86). Respondent filed the Return of Writ on February 29, 2016 (ECF No. 91), and, after briefing on DNA evidence that the Court ultimately did not admit (ECF No. 124), Petitioner filed his Traverse on September 17, 2018 (ECF No. 131).

This case is now ripe for review of the grounds for relief that are properly before the Court.

II. FACTUAL AND PROCEDURAL HISTORY

The details of this capital murder and aggravated robbery are set forth in numerous state court opinions, including the Ohio Supreme Court's published opinion in State v. Johnson, 112 Ohio St.3d 210 (2006); ECF No. 82-13, PageID 2762:

Marvin G. Johnson appeals from his convictions entered pursuant to
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jury verdicts finding him guilty of the aggravated murder of 13-year-old Daniel Bailey and the rape and aggravated robbery of Tina Bailey, Daniel's mother, and from the trial court's imposition of the death penalty
The record reveals that Tina Bailey lived on Stewart Avenue in Cambridge, Ohio. Marvin Johnson first met her in 1998 or 1999, and he eventually began living with her on Stewart Avenue. Between 2000 and 2002, an Alabama court incarcerated him for violating parole in connection with a 1988 arson conviction in that state. Upon his release, however, Johnson returned to Ohio and resided with Tina until July 2003.
During the time Johnson lived with Tina, his use of crack cocaine became problematic. Frequently, Johnson did not come home on payday but would instead disappear for a night or two to spend his paycheck on crack. And, due to his drug habit, he only reluctantly contributed money to the household. He also had a strained relationship with Tina's two children, especially Daniel, because he resented Tina's generosity toward them.
Both Johnson and Tina were friends of Utelius “Eric” Barnes. Johnson occasionally became jealous of Barnes, and he suspected that Tina and Barnes had relations.
On July 3, 2003, after several weeks of anger and tension, Tina told Johnson to leave. Though she later allowed him back into her house two or three times, she made it clear to him that he did not have permission to enter the house in her absence.
Nevertheless, twice during the two or three weeks before August 15, 2003, Johnson entered her house while she was at work. On the second occasion, she returned to find him there, and she ordered him to leave. Johnson refused, and he dared her to call the police. As they argued, according to Tina's trial testimony, Johnson “pulled his arm back, ” as if to strike her, and he warned that she “shouldn't be surprised if [she] found [her] house in ashes.” Eventually, he voluntarily left her home.
Tina worked as a nurse at the Southeastern Ohio Regional Medical Center, a hospital in Cambridge, Ohio, and during the summertime, she often worked the 11:00 p.m. to 7:00 a.m. shift. Her son, Daniel, who would stay at home alone while Tina worked, customarily stayed
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up until 4:00 or 5:00 a.m. and would phone her at work to say goodnight before he went to bed. On the night of August 14, 2003, Tina worked the late shift while Daniel stayed at home alone, and, in keeping with his habit, he phoned his mother in the early morning hours of August 15 to say goodnight before he went to bed.
That same evening, Johnson stayed at the home of Lisa Wilson, an acquaintance of his and a drug dealer. David Jones, another Wilson acquaintance, also spent the night at Wilson's home. At midnight, Wilson went on what she described as a “crack run, ” and she testified that she saw Johnson asleep on her couch when she left. When she returned at 3:00 a.m., she remembered seeing him in the same position, and, at 3:30 a.m., when she left a second time, she also noticed him there.
Around 5:30 a.m., when Wilson returned, she did not see Johnson but learned from David Jones that he “had gotten up about 5:00.” According to Wilson, Jones also told her that “ten minutes after I had left at 3:30, ” he heard Johnson “rummaging through a bag in the kitchen” before he left. The bag contained old shoes that Wilson had collected.
Sometime after Daniel's phone call to his mother saying goodnight, Johnson beat 13-year-old Daniel Bailey to death. The presence of blood spatters in the living room of the Bailey home established that the beating occurred there.
According to Dr. Charles Lee, the physician who performed the autopsy, Daniel suffered multiple skull fractures, bruising on his face, and two long lacerations on his head caused by five or six blows from a blunt instrument, possibly a two-by-four. The blows caused Daniel's brain to swell within the skull cavity until his breathing stopped. In such cases, according to Dr. Lee, death “typically takes anywhere from a couple to several minutes.”
After beating Daniel, Johnson gagged and hogtied him with shoelaces taken from the bag in Lisa Wilson's home. According to Dr. Lee, Daniel's head injuries occurred before Johnson tied his hands and feet. Dr. Lee also concluded that Daniel was still alive when he was tied up: “Yes, there's no question he was alive. * * * [T]he skin reaction, the red hyperemia next to the bindings around the wrists shows that * * * the heart was still pumping while these tight bindings were around the wrists.”
After beating Daniel and tying him up, Johnson carried him to the
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basement of the Bailey home.
Tina returned from work around 8:00 a.m. and spoke briefly with Utelius Barnes, as he prepared to start his second day of work on the remodeling project at her home. The two went inside and discussed the work for another 20 minutes. Tina then went upstairs.
When she reached the top of the stairs, she saw Johnson coming out of the bathroom wearing an olive-colored T-shirt and carrying a knife in his hand. As Johnson held the knife up in front of her, Tina asked him to put it down and said, “where's Daniel, what did you do to Daniel [?]”
Johnson walked Tina into her bedroom. When Tina began to hyperventilate, Johnson told her to “calm down” and to “keep quiet” because Barnes and another home-remodeler were nearby. According to Tina, Johnson warned that if she did not obey, “he couldn't guarantee that Daniel would be okay.” She testified that Johnson told her that Daniel “would be okay, ” provided that she complied with three demands: first, Johnson wanted to watch Barnes and Tina have sex; second, he wanted to have sex with Tina “one last time” himself; and, third, he wanted $1, 000. Tina asked Johnson why he was doing this, and he replied, “this [is] the only way I know how to hurt you.”
She disrobed and performed oral sex on him, and he placed his fingers in her vagina. He continued to hold the knife during these acts. Tina testified that she would not have done this had she not been afraid for Daniel or if Johnson had not held the knife.
Afterward, according to Tina, Johnson told her to “get up and get dressed, we ha[ve] to go to the bank.” She got dressed and walked out of the bedroom ahead of Johnson, who still held the knife. She again asked him to put it down, and he returned to the bedroom and placed the knife under the mattress on the bed. Police later recovered it there with Johnson's thumbprint on it.
Johnson persuaded Tina to drive him to her bank where, using the drive-through window, she withdrew $1, 000 and handed it to him. Bank records and the teller's testimony reveal that this transaction occurred between 8:48 and 8:50 a.m. on August 15. Johnson then had Tina drive him to the parking lot of the local Elks Lodge, and he told her to go home and said he would call to tell her what he had done with Daniel.
Tina went home and found Daniel in the basement behind her washing machine, gagged, tied and lying face down in a blanket. She tried to
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remove the gag and tried to revive him before she ran upstairs and asked one of the home-remodelers to call the
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