Stojetz v. Ishee

• Decision Date: 24 September 2014
• Docket Number: Case No. 2:04-cv-263
• Parties: JOHN C. STOJETZ, Petitioner, v. TODD ISHEE, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOHN C. STOJETZ, Petitioner, v. TODD ISHEE, Warden, Respondent.

Case No. 2:04-cv-263

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

September 24, 2014

JUDGE GREGORY L. FROST

Magistrate Judge Norah McCann King

OPINION AND ORDER

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court for consideration of Petitioner's Petition (ECF No. 14), Respondent's Return of Writ (ECF No. 21), Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus (ECF No. 93), Respondent's Merits Brief (ECF No. 101), Petitioner's Amendment to the Petition (ECF No. 130), Respondent's Amended Return of Writ (Answer) (ECF No. 134), and Petitioner's Amended Traverse (ECF No. 137).

I. Overview

In a September 30, 2005 Opinion and Order, the Court dismissed as procedurally defaulted the following grounds for relief: one, sub-part (B)(1); one, sub-part (C); one, sub-part (D); one, sub-part (E) in part; one, sub-part (F) paragraphs 269 and 271; one, sub-part (G) paragraphs 485-494; one, sub-part (H); one, sub-part (I)(1); one, sub-part (I)(2); four, sub-part (1)(C); four, sub-part (1)(D); four, sub-part (2)(B); nine, sub-part (E); ten; eleven, sub-parts A, B, C, E in part, F, G, H, I, J, and K; twelve; and fourteen, sub-part (A) paragraphs 772-779. (ECFNo. 39.) In a February 10, 2006 Opinion and Order, the Court dismissed as procedurally defaulted the following portions of Petitioner's third ground for relief: "Pretrial Matters" paragraphs 338-351; "General Voir Dire by Defense Counsel" paragraphs 366-373; and "Exercise of Peremptories" paragraphs 374-382. (ECF No. 43.) The Court noted that its dismissal of most of these claims was subject to reconsideration, should Petitioner subsequently be able to demonstrate either cause and prejudice to excuse the default or an actual innocence exception to procedural default.

The Court permitted some factual development in this case. In a March 10, 2005 Order, the Court granted Petitioner's motion to expand the record with thirty-five documents essentially reflecting Petitioner's efforts to obtain state post-conviction relief following his conviction. (ECF No. 29.) In a July 10, 2007 Opinion and Order, the Court granted Petitioner's request for funds to employ a private investigator and a mitigation investigator. (ECF No. 69.) On May 21, 2008, this Court issued an Opinion and Order granting Petitioner's request for an order directing the release of records concerning Petitioner in possession of the Ohio Department of Rehabilitation and Correction, the Cuyahoga County Probation Department, the Cuyahoga County Juvenile Court, and the Cuyahoga County Department of Children and Family Services. (ECF No. 87.) The Court on September 4, 2009, issued an Opinion and Order granting Respondent's request to expand the record with additional material from the trial (ECF No. 117), and Respondent filed the material on September 17, 2009 (ECF No. 118). Finally, on June 3, 2013, Respondent supplemented the record with transcripts and other material stemming from Petitioner's more recent attempts to obtain postconviction relief. (ECF Nos. 131, 132, 133.)

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

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. Stojetz, 84 Ohio St. 3d 452 (1999):

On April 25, 1996, appellant, John C. Stojetz, Jr., along with five other adult inmates, ran across the prison yard of Madison Correctional Institution and toward the Adams Alpha Unit ("Adams A"), which houses many of the state's juvenile offenders who had been tried as adults and convicted of criminal offenses. Appellant and the other five inmates were each armed with knives commonly known as "shanks." Appellant and the others entered the Adams A unit, circled the control desk, and held corrections officer Michael C. Browning at knifepoint. Appellant then placed a shank to Browning's throat and ordered him to give appellant the keys that opened the cell doors of the Adams A unit. Browning threw the keys down and was allowed to flee the unit.

Corrections officers immediately responded to Browning's "man down" alarm and converged on Adams A. Officers were able to observe appellant and the other five inmates carrying shanks. The corrections officers, armed only with pepper mace, attempted to enter Adams A. However, appellant and the other inmates, wielding shanks, prevented the officers from entering.

Once inside Adams A, appellant and his accomplices proceeded to cell number 144, the cell of Damico Watkins, a seventeen-year-old juvenile inmate. Using keys taken from Browning, appellant unlocked Watkins's cell and appellant and the other adult inmates entered the cell and began attacking Watkins. After eluding the initial attack and escaping from his cell, Watkins was pursued throughout the Adams A unit and repeatedly stabbed by appellant and the other shank-wielding inmates. Watkins was able to escape his attackers several times only to be again cornered and subjected to repeated stabbings. Eventually, Watkins was cornered by appellant on the second floor of the Adams A unit. As Watkins pleaded for his life, appellant and inmate Bishop repeatedly stabbed Watkins and left him for dead.

During the attack on Watkins, correction officers had surrounded the exterior of the Adams A unit. Deputy Warden Mark Saunders arrived on the scene and began conversing with the inmates who had taken over Adams A. During this conversation, inmate Lovejoy stated that "they [the inmates who had taken over Adams A] would not cell with black inmates." Also during the

conversation, appellant stated, "we took care of things because you [prison officials] wouldn't." Subsequently, the inmates were ordered to surrender. The prison yard was cleared and appellant and the five perpetrators passed their shanks through a window in the foyer of Adams A. Once prison officials retrieved the weapons, appellant and the other adult inmates exited the Adams A unit and surrendered to prison authorities.

After prison authorities regained control of the Adams A unit, the coroner arrived at the scene and declared Watkins dead.

In October 1996, appellant was indicted by the Madison County Grand Jury for the aggravated murder of Watkins. The single-count indictment charged appellant with purposely causing the death of Watkins with prior calculation and design in violation of R.C. 2903.01(A). The count also charged appellant with a R.C. 2929.04(A)(4) death penalty specification of committing aggravated murder while a prisoner in a detention facility.

Appellant entered a plea of "not guilty" to the charges in the indictment, and the case proceeded to a trial by jury. Evidence submitted at trial indicated that appellant was known to be the head of the "Aryan Brotherhood" gang at the Madison Correctional Institution. Other evidence at trial indicated that appellant and other members of the Aryan Brotherhood did not want to be housed in the same cells as black inmates. Further testimony indicated that appellant and members of the Aryan Brotherhood wanted to be transferred from Madison Correctional to other penal institutions. In fact, following the murder, prison authorities conducted a search of appellant's cell as well as the cells of his accomplices. During the search it was found that appellant and four of the other five inmates who had participated in the attack on Watkins had already packed their personal belongings.

At the conclusion of the trial, and after deliberation, the jury found appellant guilty of the charge and specification in the indictment. Following a mitigation hearing, the jury recommended that appellant be sentenced to death for the aggravated murder of Watkins. The trial court accepted the jury's recommendation and imposed the sentence of death.

Stojetz, 84 Ohio St. 3d at 453-54.

Represented by two new attorneys, Joseph Wilhelm and Kelly Culshaw, Petitioner pursued a direct appeal to the Ohio Supreme Court on December 23, 1997. Counsel raised nineteen propositions of law. On February 17, 1999, the Ohio Supreme Court issued a decisionrejecting Petitioner's propositions of law and concluding that Petitioner's death sentence was appropriate and proportionate. Stojetz, 84 Ohio St. 3d 452. On April 7, 1999, the Ohio Supreme Court denied without opinion Petitioner's motion for reconsideration. (App. Vol. III, at 178.)

The United States Supreme Court denied certiorari on November 10, 1999. (App. Vol. III, at 215.)

Represented by attorney John J. Gideon, Petitioner on May 18, 1999 filed an application to reopen his direct appeal to the Ohio Supreme Court—Ohio's procedure for raising claims of ineffective assistance of appellate counsel. On August 18, 1999, the Ohio Supreme Court summarily denied Petitioner's application. (App. Vol. III, at 214.)

On March 4, 1998, attorney Gideon filed a postconviction action in the trial court while different attorneys were still litigating Petitioner's direct appeal. (App. Vol. IV, at 5.) Petitioner filed five amendments to that postconviction action from March 10, 1998 through March 19, 1999. After conducting an evidentiary hearing and considering briefs by the parties, the trial court issued an extensive decision and entry on September 14, 2000, denying Petitioner's claims and dismissing his postconviction action. (App. Vol. V, at 191-303.)

Attorney Gideon filed a notice of appeal in the trial court on October 13, 2000. After requesting and receiving multiple extensions of time, as well as leave to file a brief in excess of the page-limit, Gideon failed to file his merit brief or request an extension of time. On September 10, 2001, the state appellate court issued a show cause order (App....