Shine-Johnson v. Warden, Belmont Corr. Inst.

• Decision Date: 29 March 2021
• Docket Number: Case No. 2:20-cv-1873
• Parties: JOSEPH SHINE-JOHNSON, Petitioner, v. WARDEN, Belmont Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOSEPH SHINE-JOHNSON, Petitioner, v. WARDEN, Belmont Correctional Institution, Respondent.

Case No. 2:20-cv-1873

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

March 29, 2021

Chief Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Joseph-Shine Johnson, is before the Court for decision on the merits. The relevant filings are the Petition (ECF No. 3), the Amended State Court Record (ECF No. 45), the Amended Return of Writ (ECF No. 46), and Petitioner's Traverse (ECF No. 81).

The Magistrate Judge reference in this case was transferred to the undersigned to help balance the Magistrate Judge workload in the Southern District (ECF No. 25). Ultimate decision of the case remains with Chief Judge Marbley.

Litigation History

On September 18, 2015, a Franklin County Grand Jury indicted appellant on one count of aggravated murder in violation of Ohio Revised Code § 2903.01, one count of murder in violation of Ohio Revised Code § 2903.02, and one count of tampering with evidence in violation of Ohio Revised Code § 2921.12(A), arising from the fatal shooting of Petitioner's father, Joseph Bythewood. Each count included an associated firearm specification under Ohio Revised Code § 2941.145(A). Petitioner pleaded not guilty, and the case proceeded to a jury trial where Petitioner argued he shot his father in self-defense. State v. Shine-Johnson, 2018-Ohio-3347 (Ohio App. 10^th Dist. Aug. 21, 2018)("Shine-Johnson I"), appellate jurisdiction declined, 155 Ohio St. 3d 1439 (2019). The jury found Petitioner not guilty of aggravated murder, but guilty of murder with a firearm specification and guilty of tampering with evidence, also with a firearm specification. The trial court sentenced Shine-Johnson to fifteen years to life on the murder count plus the three mandatory years for the firearm specification and a concurrent two years on evidence tampering with an additional year on the firearm specification on that count.

Shine-Johnson appealed and the Ohio Tenth District Court of Appeals affirmed. Shine-Johnson I. With the assistance of appointed counsel, Petitioner appealed to the Supreme Court of Ohio, but that court declined to accept jurisdiction as noted above.

On November 27, 2018, Petitioner filed a pro se Application to Reopen the appeal to raise claims of ineffective assistance of appellate counsel (Am. State Court Record, ECF No. 45-1, Ex. 79). The Tenth District denied the Application because it was untimely. Id. at Ex. 82. The Supreme Court of Ohio declined to exercise appellate jurisdiction. Id. at Ex. 90.

On April 29, 2019, Shine-Johnson filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 raising a claim about retroactive application of amendments to Ohio Revised Code § 2901.05 (Am. State Court Record, ECF No. 45-1, Ex. 94). The trial judge rejected the petition on the merits, holding that the changes made to Ohio Revised Code § 2901.05 by House Bill 228 applied only prospectively (Entry, Am. State Court Record, ECF No. 45-1, Ex.99). Petitioner appealed and the Tenth District held the trial court lacked jurisdiction because the post-conviction petition was untimely filed and remanded for dismissal on that basis. State v. Shine-Johnson, 2020-Ohio-4711 (Ohio App. 10^th Dist. Sep. 30, 2020)("Shine-Johnson II"), appellate jurisdiction declined, 160 Ohio St. 3d 1498 (2020).

Shine-Johnson filed his Petition in this case by depositing it in the prison mail system on March 4, 2020 (ECF No. 3). He pleads the following Grounds for Relief:

Ground One: The Petitioner was denied a fair trial, and due process under U.S. Constitution Amendment V, VI and XIV, and Ohio const. Article I, §1, §10, and 16 due to Prosecutorial Misconduct.

Ground Two: The Trial court committed prejudicial error and denied the petitioner his right to a fair trial, and due process under U.S. Constitution Amendment V, VI, and XIV, and Ohio const. Art I, §1 §10 and 16 when it failed to give curative instructions.

Ground Three: The Trial court committed prejudicial error and denied the petitioner his right to a fair trial, and due process under U.S. Constitution Amendment V, VI, XIV, and Ohio const. Art I, §1 §10 and 16 when it failed to provide jurors with requested jury instructions that deprived the petitioner [of] a complete defense.

Ground Four: Trial counsel rendered ineffective assistance in violation of the petitioner's rights under U.S. Constitution. Amendment V, VI, and XVI, and Ohio const. Art I, §10 and 16.

Ground Five: The Trial court committed prejudicial error and denied the petitioner his right to a fair trial, and due process under U.S. Constitution Amendment V, VI, and XVI, and Ohio const. Art I, §1 §10 and 16 due to the cumulative effect of evidentiary errors at trial.

Ground Six: Appellate counsel rendered ineffective assistance in violation of the petitioner's rights under U.S. Constitution Amendment V, VI, and XVI, and Ohio Const. Art I, §10 and 16 When counsel failed to raise ineffective assistance of counsel claim for trial counsel failing to file a motion to dismiss for altering and destroying exculpatory evidence significant to the petitioner's defense denying the petitioner a chance to raise a complete defense.

GROUND SEVEN: The Petitioner's Conviction is Void in violation the U.S. Constitution. Amendment V, VI, XIV and Ohio Constitution Art. I, section 10, and 16. Due to a Substantive change in the Burden of proof statute. The petitioner's conviction is under a Statutorily unconstitutional law and the new interpretation of the Burden of proof must be applied retroactively.

(Petition, ECF No. 3).

Analysis

Claims Under the Ohio Constitution

Each of Petitioner's Grounds for Relief includes a claim of violation of the Ohio Constitution. However, federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6^th Cir. Apr. 23, 2018)(Thapar, J. concurring).

In his Traverse, Shine-Johnson includes a section arguing that violations of the Ohio Constitution constitute violations of the Due Process Clause of the Fourteenth Amendment (ECF No. 81, PageID 6105-10). That, however, is not the law. Failure to abide by state law is not itself a federal constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6^th Cir. 1985). Violation by a State of its own procedural rules does not per se constitute a violation of due process. Bates v. Sponberg, 547 F.2d 325 (6^th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228 (6^th Cir. 1976). "A state cannot be said to have a federal due process obligation to follow all of itsprocedures; such a system would result in the constitutionalizing of every state rule, and would not be administrable." Levine v. Torvik, 986 F.2d 1506, 1515 (6^th Cir. 1993).

In the same section, Shine-Johnson argues the United States Supreme Court has somehow constitutionally mandated the availability of self-defense as a defense in a murder case (Traverse, ECF No. 81, PageID 6105-06, relying on District of Columbia v. Heller, 554 U.S. 570 (2008)). Heller held that the right to keep and bear arms protected by the Second Amendment was an individual right, supportive of the natural right everyone has to defend himself or herself against violence. But the opinion says nothing about the defense of self-defense in a murder case. Similarly, in McDonald v. Chicago, 561 U.S. 742 (2010), two years after Heller the Court held the Second Amendment was "incorporated" into the Fourteenth Amendment and therefore applicable to the States. Neither of these cases purported to elevate the defense of self-defense in a murder case to a constitutionally mandated defense which is State must recognize, much less to define what that defense must be.

Accordingly, no further analysis is offered on Shine-Johnson's Ohio constitutional claims. Each such claim must be dismissed for failure to state a claim upon which federal habeas corpus relief can be granted.

Factual Analysis

Petitioner's Traverse is 241 pages long (ECF No. 81). After a summary of his argument, he disagrees at length with the findings of fact of the Tenth District. Id. at PageID 6076-89. This section of the Traverse contains literally hundreds of record citations, none of which complies with this Court's record citation rule, the substance of which was repeated in Magistrate Judge Deavers'order for an answer: "All papers filed in the case thereafter [after the filing of the record] by each party shall include record references to the PAGEID number." (ECF No. 2, PageID 47). Basically, Petitioner argues the asserted inconsistencies in the trial testimony. But the credibility of witnesses is committed to the trier of fact and the jury here returned two guilty verdicts. Contrary to Petitioner's assertion, the fact that the jury acquitted him of aggravated murder does not mean they generally believed him.

Ground One: Prosecutorial Misconduct

In his First Ground for Relief, Petitioner asserts his trial was rendered unfair by prosecutorial misconduct.

Respondent asserts Shine-Johnson procedurally defaulted this Ground for Relief by presenting no prosecutorial misconduct claims to the Supreme Court of Ohio on direct appeal. Alternatively, Respondent asserts the Tenth District's decision on this claim is entitled to...