Johnson v. Fender

Decision Date29 November 2021
Docket Number1:20-CV-00018-DAP
CourtU.S. District Court — Northern District of Ohio
PartiesROBERT D. JOHNSON, Plaintiff, v. WARDEN DOUGLAS FENDER, Defendant.

ROBERT D. JOHNSON, Plaintiff,
v.

WARDEN DOUGLAS FENDER, Defendant.

No. 1:20-CV-00018-DAP

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

November 29, 2021


DAN AARON POLSTER, JUDGE UNITED STATES DISTRICT.

REPORT & RECOMMENDATION

Jonathan D. Greenberg, United States Magistrate Judge.

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Robert Johnson (“Johnson” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Johnson is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Johnson, Cuyahoga County Court of Common Pleas Case No. CR-17-614774-A. For the following reasons, the undersigned recommends that the Petition be DISMISSED IN PART AND DENIED IN PART.

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Johnson's conviction as follows:

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{¶ 2} In 2017, Johnson was charged with attempted rape aggravated burglary, burglary, abduction, assault, and criminal damaging stemming from an incident with his former girlfriend, B.B. The case proceeded to a jury trial, at which the following pertinent evidence was presented
{¶ 3} In February of 2017, B.B. lived with her four children in a Cleveland Heights duplex. B.B. and her children lived in the bottom portion of the house. Their portion of the house had an entrance into the living room in the front of the house and an entrance from a side stairway outside the kitchen
{¶ 4} B.B. met Johnson, and they dated off and on for four years. The relationship ended in December 2016. At the time, B.B. was pregnant with Johnson's child and was debating about whether to terminate the pregnancy. On the night of February 22, 2017, Johnson tried to contact B.B. about the “baby situation” via phone calls and text but she stopped answering. Johnson arrived at B.B.'s house around 11:00 p.m. and an argument ensued. Johnson stood outside on the porch, and B.B. yelled at him from inside the house, telling him to leave. B.B. called the police after Johnson broke the front window and rammed the outer front door with his body weight trying to get into her house. Johnson physically broke through the outer front door and unsuccessfully attempted to break through the inside door. He left after he was unable to get inside.
{¶ 5} The police arrived, and B.B. showed them the damage to the house. B.B. told the police that she did not want Johnson there and would pursue charges against him if the police found him. The police looked for Johnson but were unable to locate him.
{¶ 6} The next day, B.B. helped her landlord fix the damaged window and door. B.B. went to bed around 11:00 p.m. or midnight. B.B. slept in the living room, and her children slept in the two bedrooms at the back of the house. Around 3:30 or 4:00 a.m., B.B. woke up to her phone ringing and incoming text messages, all from Johnson. B.B. silenced her cell phone and then heard a knock at the window. Johnson was standing at the window watching B.B. ignore the phone calls and text messages: “he was mad that I was literally ignoring him in his face, as he said.”
{¶ 7} Johnson told B.B. to answer the door, and she told Johnson to leave. B.B. asked Johnson why he was there and told him she was calling the police. Johnson told B.B. “that if I didn't let him in that he was going to break all my windows, and that he also - if he couldn't come in, then I couldn't live there.”
{¶ 8} Johnson was carrying a weighted exercise bar that B.B. recognized as a bar he used to do pull-ups. Johnson started breaking windows to the house using the end of the bar. He pushed out the plexiglass window of the back
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outside door and opened the outer back door. B.B.'s children woke up and started screaming. Johnson then left.
{¶ 9} Johnson returned a short time later while B.B. was consoling her children in the kitchen. According to B.B., Johnson told her he went to the store and, “he had thought about it, I needed to give him some [sex] so he could go to work, and he would leave me alone.”
{¶ 10} B.B. saw the exercise bar come through the kitchen door, followed by Johnson. B.B. screamed at Johnson, who told her all she had to do was have sex with him and he would leave. B.B. ran to push him out of the house, and a struggle ensued in the landing of the kitchen stairway. Johnson ripped B.B.'s dress off and threw it outside. Johnson told B.B.'s children to get to the back of the house and leave them alone. According to B.B., Johnson threatened the children that if they did not go to the back of the house, he would beat them. Johnson pinned B.B. against the wall and started to remove his own clothes. The struggle moved through the kitchen, dining room, and into the living room.
{¶ 11} At one point, Johnson had his hands around B.B.'s neck. During the assault, Johnson pulled out all of B.B.'s hair extensions, and B.B. testified that it “hurt.”
{¶ 12} X.B., B.B.'s oldest child, came out of his bedroom to see what was going on. X.B. saw Johnson on top of his mother with his mother trying to push Johnson off. Both his mother and Johnson were naked. X.B. called the police. B.B. saw a searchlight and bit Johnson. B.B. was able to get up, run to a broken window, and screamed for help. Although it is unclear from the record what happened next, at some point B.B. was able to push Johnson out the kitchen door.
{¶ 13} B.B. went to see a doctor after the incident “for a checkup to make sure I was okay” because she had “scratches and bruises.” B.B. testified that she was afraid for her as well as her children's lives during the ordeal.
{¶ 14} Detective Michael Mathis (“Detective Mathis”) of the Cleveland Heights Police Department arrived on scene while Johnson was banging on B.B.'s inner back door, asking to be let in so they could have sex. Johnson was naked. The detective detained him. Detectives Mathis and Earl Pierson interviewed Johnson. Johnson told the police he took an Uber to B.B.'s house to talk to her about their relationship.
Johnson stated that he had called B.B., but she would not answer, so he got upset. He told police he went to B.B.'s place to have sex so he could then go to sleep. Johnson explained that he brought the exercise bar because B.B. had a gun and often had other men over at her house. Johnson admitted to breaking the side door window, to telling X.B. to leave, and that he was upset
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that B.B. did not take his phone calls. Johnson told the police that B.B. did allow him into her house, everything was fine between them, and he had broken out her window because he was upset. The police photographed the scene, including the broken doors and windows, the exercise bar, and pieces of B.B.'s synthetic hair.
{¶ 15} The jury convicted Johnson of all charges. The state filed a sentencing memorandum prior to sentencing. The trial court determined that the attempted rape did not merge with the burglary or the aggravated burglary but the aggravated burglary and the burglary merged. The state elected to proceed to sentencing on the aggravated burglary. The trial court sentenced Johnson to eight years for attempted rape, four years for aggravated burglary, twelve months for abduction, and 180 days for assault and criminal damaging. The court ordered the sentences for attempted rape and aggravated burglary to run consecutive to each other and concurrent to all other counts, for a total sentence of 12 years in prison.

State v. Johnson, 2018-Ohio-3999, 121 N.E.3d 776, 778-80 (Ohio Ct. App. 2018).

II. Procedural History

A. Trial Court Proceedings

On March 6, 2017, the Cuyahoga County Grand Jury indicted Johnson on the following charges: one count of attempted rape in violation of O.R.C. § 2923.02/2907.02(A)(2) (Count 1); one count of aggravated burglary in violation of O.R.C. § 2911.11(A)(1) (Count 2); one count of burglary in violation of O.R.C. § 2911.12(A)(1) (Count 3); one count of abduction in violation of O.R.C. § 2905.02(A)(2) (Count 4); one count of assault in violation of O.R.C. § 2903.13(A) (Count 5); and one count of criminal damaging or endangering in violation of O.R.C. § 2909.06(A)(1) (Count 6). (Doc. No. 7-1, Ex. 1.) The case proceeded to jury trial, and on September 22, 2017, the jury returned a verdict finding Johnson guilty as charged in the indictment. (Doc. No. 7-1, Ex. 8.)

On September 28, 2017, Johnson, pro se, filed a motion for a new trial alleging a conflict of interest with juror number 12. (Doc. No. 7-1, Ex. 9.) Johnson also filed a notice with the court requesting a direct appeal and/or re-trial based on an alleged speedy trial violation and a conflict of

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interest with juror number 12. (Doc. No. 7-1, Ex. 10.) The State filed a response in opposition. (Doc. No. 7-1, Ex. 11.)

On October 23, 2017, the trial court found no bias with juror number 12 and denied Johnson's motion for new trial. (Doc. No. 7-1, Ex. 12.) The trial court proceeded to sentencing. (Id.) The trial court determined that Counts 1 and 4 should merge for sentencing, and that Counts 2 and 3 should merge for sentencing. (Id.) The State elected to proceed on Counts 1 and 2. (Id.) The trial court sentenced Johnson to a total of 12 years in prison: eight (8) years in prison on Count 1 and four (4) years in prison on Count 2. (Id.) Johnson received a 180-day jail sentence for...

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