Sette v. Warden, Lebanon Corr. Inst.

• Decision Date: 19 October 2020
• Docket Number: Case No. 1:19-cv-912
• Court: U.S. District Court — Southern District of Ohio
• Parties: JOSHUA MORRIS SETTE, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

JOSHUA MORRIS SETTE, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 1:19-cv-912

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

October 19, 2020

District Judge Matthew W. McFarland

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Joshua Morrissette under 28 U.S.C. § 2254, is before the Court for decision on the merits. Relevant filings are the Petition (ECF No. 1), the State Court Record (ECF No. 6), and the Return of Writ (ECF No. 7). Although Magistrate Judge Litkovitz set a date for Petitioner to file a reply (ECF No. 4, PageID 18), he has never done so, despite requesting and receiving two extensions of time (ECF Nos. 9 through 12).

Litigation History

On October 13, 2016, a Hamilton County Grand Jury indicted Petitioner on one count of aggravated murder in violation of Ohio Revised Code § 2903.01(A)); two counts of murder in violation of Ohio Revised Code § 2903.02 (A) and (B)); one count of felonious assault in violation of Ohio Revised Code § 2903.11(A)(1)), with two firearm specifications on each count; one count of having weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(3)); one count of aggravated possession of drugs in violation of Ohio Revised Code § 2925.11(A)), including a firearm specification; one count of possession of cocaine in violation of Ohio Revised Code § 2925.11 (A)), including a firearm specification; and another count of having weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(3)), including two forfeiture specifications (Indictment, Case No. B-1605788, ECF No. 6, Ex. 1, PageID 23-29). The trial jury acquitted Morrissette on the aggravated murder charge, but convicted him on the other counts. After merging some of the counts under Ohio Revised Code § 2941.25, the trial judge sentenced Morrissette to an aggregate sentence of twenty-seven years to life imprisonment.

On direct appeal the Ohio First District Court of Appeals affirmed the conviction and sentence. State v. Morrissette, 2018-Ohio-3917 (Ohio App. 1^st Dist. Sept. 28, 2018), appellate jurisdiction declined, 2018-Ohio-52019 (2018). Petitioner then timely filed the instant habeas corpus petition pro se, pleading the following Grounds for Relief:

Ground One: Mr. Morrissette['s] conviction was contrary to the manifest weight of the evidence and insufficient to support a conviction.

Supporting Facts: The state's case in chief suffered from two critical defects that renderd [sic] it unconvincing: the lack of tangible, physical evidence placing the gun in Joshua's hand, and the credibility issues attendant to each witness that the state produce[d] to testify agaisnt [sic] him at trial, thus violating Morrissette's due process right, when insufficient evidence was produced to sustain a conviction.

Ground Two: The State committed multiple instances of prosecutorial misconduct by presenting improper arguments to the jury during its closing statement, and by repeatedly referring to Mr. Morrissette as "Psycho" throughout its case in chief violating his right to due process and a fair trial.

Supporting Facts: The state committed multiple instances of misconduct during Joshua's trial; they broadly entail two distinctcategories: improper arguments made durin [sic] the state's closing statement, and repeated references to Joshua as "psycho" throughout the course of the trial. Comment on the supposed insanity defense punishment perhaps the most egregious of the improper arguments made by the state during closing statements were the repeated reference to Joshua's alleged attempt to feign insanity.

Ground Three: The trial court erred by instructing the jury on flight as evidence of Mr. Morrissette's guilt for having committed the offense of murder.

Supporting Facts: Due process was violated when Morrissette was exposed to a erroroneous [sic] instruction that violated his substantial right to a fair trial.

Ground Four: Mr. Morrissette was deprived of his constitutional right to the effective assistance of trial counsel, under the 6th Amendment.

Supporting Facts: There was one critical deficieny [sic] in their representation, and that was their willingness to indulge the state in their repeated use of Joshua's puportted [sic] nickname, 'Psycho' and in to fact join them in making such references. In addition to the innumerable instances in which the state used or elicited this nickname during it's [sic] case in chief, trial counsel used or elicited this nickname no less than one dozen times.

Ground Five: The cumulative effect of the preceding errors denied Mr. Morrissette of his constitutional due process right to a fair trial.

Supporting Facts: The preceding errors were sufficiently prejudicial individually to warrant reversal of Joshua's conviction and remand for a new trial. Considered cumulatively, these errors indisputably deprived Joshua of his right to a fair trial. As such, his conviction should be reversed and his case remanded for a new trial.

(Petition, ECF No. 1, PageID 5-11.)

Analysis

Ground One: Weight of the Evidence

In his First Ground for Relief, Petitioner argues that his conviction is against the manifest weight of the evidence and also supported by insufficient evidence.

As the Return of Writ points out, these are two different claims. In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Supreme Court of Ohio reaffirmed the important distinction between appellate review for insufficiency of the evidence and review on the claim that the conviction is against the manifest weight of the evidence. It held:

In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, (1982), citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.)

When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a " 'thirteenth juror' " and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin(1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ("The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.").

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172 (Hamilton Cty. 1983)(cited approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest weight of the evidence claim:

In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. ...

Martin, 20 Ohio App. 3d 172, ¶3 of the syllabus. On direct appeal, Morrissette made only a manifest weight claim, not an insufficiency of the evidence claim. A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6^th Cir. 1986). Therefore this Court cannot consider Morrissette's manifest weight claim on the merits.

Respondent argues Morrissette procedurally defaulted on his insufficiency of the evidence claim by not raising it on direct appeal. However, the undersigned has for some years followed the unpublished Sixth Circuit decision in Nash v. Eberlin, 258 Fed. Appx. 761 (6^th Cir. Dec. 14, 2007), which held that a habeas petitioner did not default an insufficiency claim by only pleading a manifest weight claim. See Hughes v. Warden, 2011 U.S. Dist. LEXIS 54131(S.D. Ohio Apr. 27, 2011), adopted, 2011 U.S. Dist. LEXIS 54132 (S.D. Ohio May 20, 2011). Following that precedent, the Magistrate Judge finds Morrissette has preserved his insufficiency of the evidenceclaim for presentation here.

Unlike the manifest weight claim, an allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir....