Blevins v. Erdos

JUSTIN R. BLEVINS, Petitioner, v. RON ERDOS, Warden, Southern Ohio Correctional Institution, Respondent.

No. 2:21-cv-137

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

August 25, 2021

James L. Graham, District Judge.

REPORT AND RECOMMENDATIONS

Michael R. Merz, United States Magistrate Judge.

This habeas corpus, brought pursuant to 28 U.S.C. § 2254 by Petitioner Justin Blevins with the assistance of counsel, is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 8), the Warden's Return of Writ (ECF No. 9), and Petitioner's Reply/Traverse (ECF No. 13). The Magistrate Judge reference in the case has been transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 14).

Litigation History

Petitioner was indicted by the Pickaway County Grand Jury on July 7 2017, on one count of Aggravated Murder in violation of Ohio Revised Code § 2903.01(A), one count of Murder in violation of Ohio Revised Code § 2903.02(A), one count of Murder in violation of Ohio Revised Code § 2903.02(B), and one count of Felonious Assault in violation of Ohio Revised Code § 2903.11(A)(2), all with firearm specifications. (Indictment, State Court Record, ECF No. 8 Ex. 1). The case was tried to a jury which convicted Blevins on all counts and specifications. After his motion for new trial was denied, he was sentenced to thirty years to life imprisonment for aggravated murder plus the three-year required minimum on the firearm specification.

Blevins appealed to the Fourth District Court of Appeals raising seven assignments of error (Appellant's Brief, State Court Record, ECF No. 8, Ex. 10). That court affirmed. State v. Blevins, 140 N.E.3d 27, 2019-Ohio-2744 (Ohio App. 4^th Dist. Jun. 26, 2019). The Supreme Court of Ohio declined appellate jurisdiction. State v Blevins, 157 Ohio St.3d 1441 (2019).

Blevins pleads the following grounds for relief:

Ground One: Defective Jury Instruction as to Manslaughter.

Supporting Facts: Evidence was adduced at trial to demonstrate that Petitioner had been threatened by the deceased. The trial court's instruction on voluntary manslaughter directed the jury to consider it as if it were a lesser-included offense (only applicable if Petitioner was not guilty of Aggravated Murder and Murder), rather than an inferior degree offense (applicable if Petitioner was guilty of Aggravated Murder or Murder, but the jury found mitigating circumstances existed). On appeal, the State agreed that the instruction was defective.

Ground Two: Erroneous Answer to Jury Questions

Supporting Facts: During deliberations, the jury asked a question which expressed confusion as to the circumstances under which it was to consider the inferior offense of voluntary manslaughter. The trial court instructed the jury to refer to the instructions in the verdict form which, as discussed in Ground One, were contrary to law.

Ground Three: Ineffective Assistance of Trial Counsel

Supporting Facts: Trial counsel (1) failed to object to the defective jury instruction, (2) failed to object to the erroneous answer provided in response to the jury's question during deliberations, (3) induced a detective to remark on Petitioner's invocation of his right to remain silent, (4) elicited a detective's opinion as to Petitioner's guilt, (5) failed to effectively impeach a witness about Petitioner's purported incriminating statements, and (6) failed to object to the State's mischaracterization of that testimony. Trial counsel admitted several of these errors in a Motion for New Trial and its associated exhibits.

Ground Four: Insufficient Evidence Regarding Prior Calculation and Design to Support Conviction for Aggravated Murder

Supporting Facts: Petitioner entered the residence armed. Prior to the incident, he sent a message to a friend via Facebook which contained a photo of a firearm similar to that found at the scene and a message that he “had to take care of some B.S.” Petitioner testified that this statement was in reference to a different situation where he had been robbed, not the monetary dispute he had with the deceased. Petitioner testified that he brought the firearm to the residence because he had felt threatened by the deceased.

Ground Five: Petitioner was excluded from the trial court's formulation of answers to jury questions.

Supporting Facts: During deliberations, the jury submitted written questions to the trial court. The discussion of how to respond to those questions was not conducted on the record. As such, only the written questions and the trial court's written answers are included in the record. The first question and the trial judge's answer are the subject of Petitioner's Second Ground for Relief. Though posttrial and appellate filings indicate that counsel was likely advised of the jury's questions, Petitioner was not present at any time.

(Petition, ECF No. 1, PageID 5-10 and 17).

Analysis

Ground One: Defective Jury Instruction as to Manslaughter

In his First Ground for Relief, Petitioner asserts the trial court's instruction on voluntary manslaughter was defective. Respondent asserts this Ground for Relief is procedurally defaulted for lack of a contemporaneous objection and that it does not state a claim cognizable in habeas corpus, i.e., for violation of the Constitution (Return, ECF No. 9, PageID 939-48).

Blevins presented his First Ground for Relief to the court of appeals as his Second Assignment of Error and the court decided it as follows:

{¶26} In his second assignment of error, Appellant contends the trial court provided the jury with a defective voluntary manslaughter instruction that rose to the level of plain error and deprived him of his rights under the Sixth and Fourteenth Amendments to the United States Constitution to a jury determination of his guilt of a less serious offense than the aggravated murder and murder counts of the indictment. The State concedes the voluntary manslaughter instructions were erroneous to the extent the instructions treated voluntary manslaughter as a lesser included offense rather than an inferior degree offense. However, the State argues the error was harmless, reasoning that Appellant was arguably not entitled to the provision of a voluntary manslaughter instruction based upon the absence of evidence Appellant acted as a result of a sudden fit of rage or passion.

{¶27} Generally, our review of “whether jury instructions correctly state the law is de novo.” State v. Kulchar, 4th Dist. Athens No. 10CA6, 2015-Ohio-3703, 2015 WL 5313080, ¶15; citing State v. Brown, 4th Dist. Athens No. 09CA3 2009-Ohio-5390, 2009 WL 3236206, ¶34. “[R]eversible error should not be predicated upon one phrase or one sentence in a jury charge; instead, a reviewing court must consider the jury charge in its entirety.” Id.; citing State v. Porter, 14 Ohio St.2d 10, 13, 235 N.E.2d 520 (1968). “[I]f an instruction correctly states the law, its precise wording and format are within the trial court's discretion.” Kulchar at ¶15.

{¶28} However, implicit in Appellant's argument is the fact that he failed to object to the voluntary manslaughter instruction given by the trial court. Thus, he has waived all but plain error. “ ‘To constitute plain error, a reviewing court must find (1) an error in the proceedings, (2) the error must be a plain, obvious or clear defect in the trial proceedings, and (3) the error must have affected “substantial rights” (i.e., the trial court's error must have affected the trial's outcome).' ” State v. Blanton, 4th Dist Adams No. 16CA1031, 2018-Ohio-1275, 2018 WL 1611408, ¶85; quoting State v. Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶31 (4th Dist.); citing State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001), and State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240.

{¶29} “ ‘Furthermore, notice of plain error must be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.' ” Blanton at ¶85; citing State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. “A reviewing court should notice plain error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. “ ‘A defective jury instruction does not rise to the level of plain error unless the defendant shows that the outcome of the trial clearly would have been different but for the alleged erroneous instruction.' ” Blanton at ¶87; quoting Dickess at ¶32; citing State v. Campbell, 69 Ohio St.3d 38, 41, 630 N.E.2d 339 (1994), and Cleveland v. Buckley, 67 Ohio App.3d 799, 805, 588 N.E.2d 912 (8th Dist.1990).

{¶30} Appellant argues the jury instructions provided by the trial court improperly foreclosed the jurors from considering voluntary manslaughter in the event they found that the prosecution had proven the elements of aggravated murder and murder. Appellant further argues that the defective instructions deprived him of his constitutional right to a jury finding as to the presence of sudden passion or sudden fit of rage, as a circumstance mitigating aggravated murder and murder to voluntary manslaughter. Appellant argues the trial court further confused the jury by providing a lesser included offense instruction, when voluntary manslaughter is, instead, an inferior degree offense of aggravated murder and murder.

{¶31} The trial court instructed the jury as follows:

“If the defendant failed to establish the defense of voluntary manslaughter, the State still must prove to you beyond a reasonable doubt that the defendant knowingly caused the death of Samuel Nicholson, II. * * *

If you find that

...