Johnson v. Sheldon

JAMES S. GWIN, JUDGE

REPORT & RECOMMENDATION

Thomas M. Parker United States Magistrate Judge

I. Introduction

Charles Johnson, an Ohio prison inmate serving an eighteen-year to life, mandatory aggregate sentence after a jury found him guilty of murder with a firearm specification, petitions the court for a writ of habeas corpus under 28 U.S.C. § 2254, contending that the state courts violated his constitutional rights in in State v. Johnson, No. G-4801-CR-0201601322-000¸ Lucas County Court of Common Pleas. ECF Doc. 1. Johnson is currently incarcerated^[1] at the Mansfield Correctional Institution, in Mansfield, Ohio where Ed Sheldon is warden and maintains custody of Johnson.^[2] Warden Sheldon opposed the petition in his answer and return of writ. ECF Doc. 7. Johnson has filed a traverse in support (ECF Doc. 10) and Warden Sheldon has filed a reply. ECF Doc. 11. The matter is before me by an

automatic order of reference under Local Rule 72.2 for preparation of a report & recommendation pursuant to Local Rule 72.1.

Because Johnson's claims are procedurally defaulted and/or lacking in merit, I recommend that his claims be DISMISSED and his petition for writ of habeas corpus be DENIED.

II. State Court History

A. Trial Court

On February 19, 2016 a Lucas County, Ohio grand jury returned an indictment charging Johnson with one count of aggravated murder in violation of Ohio Rev. Code § 2903.01(A) and (F), with a firearm specification, and one count of murder in violation of Ohio Rev. Code § 2903.02(B) and Ohio Rev. Code § 2929.02, with a fire specification. Johnson pleaded not guilty. ECF Doc. 7-1 at 6.

On May 23, 2016, Johnson moved to suppress the statements he made to police while in custody. ECF Doc. 7-1 at 7. The trial court held a suppression hearing on May 23, 2016 and denied Johnson's motion to suppress in a June 2, 2016 judgment entry. ECF Doc. 7-1 at 12.

The case proceeded to trial and the jury returned a verdict of not guilty on the aggravated murder charge, but guilty of the murder charge and the firearm specification. ECF Doc. 7-1 at 16. The trial court sentenced Johnson to the mandatory fifteen-year to life prison term for murder and a mandatory three-year prison term for the firearm specification. The sentences were statutorily required to be served consecutively. ECF Doc. 7-1 at 16.

B. Direct Appeal

Johnson appealed his convictions to the Ohio Court of Appeals. ECF Doc. 7-1 at 20. State v. Johnson, 6th Dist. No. CL 16-1165, 2017-Ohio-8206. Through new counsel, Johnson filed a merits brief on February 17, 2017 in which he asserted two assignments of error:

1. The trial court erred in denying defendant's motion to suppress his statement as he was under the influence.

2. The trial court erred in ordering defendant to pay costs and reimburse the state.

ECF Doc. 7-1 at 32. The state filed an appellee brief. ECF Doc. 7-1 at 47. On October 13, 2017, the Ohio Court of Appeals rejected Johnson's assignments of error and affirmed the trial court's judgment. State v. Johnson, 6th Dist. No. CL 16-1165, 2017-Ohio-8206; ECF Doc. 7-1 at 63.

On November 15, 2017, Johnson filed a timely pro se notice of appeal and memorandum in support of jurisdiction with the Ohio Supreme Court. ECF Doc. 7-1 at 77, 80. Johnson's jurisdictional memorandum asserted two propositions of law which were identical to his court of appeals assignments of error. ECF Doc. 7-1 at 86. The state did not file a response. ECF Doc. 7-1 at 110. On March 14, 2018, the Supreme Court of Ohio declined to accept jurisdiction of Johnson's case. ECF Doc. 7-1 at 111; State v. Johnson, 152 Ohio St.3d 1425, 2018-Ohio-923, 93 N.E.3d 1005.

Johnson did not petition the United States Supreme Court for a writ of certiorari and his filing deadline expired on June 12, 2018. USCS Supreme Ct. R. 13.

C. Delayed App. R. 26(B) Application to Reopen Appeal

On January 30, 2018, Johnson filed an untimely pro se application to reopen his direct appeal pursuant to Ohio App. R. 26(B) alleging ineffective assistance of appellate counsel.

ECF Doc. 7-1 at 112. Johnson argued that his appellate counsel failed to challenge his waiver of Miranda rights as argued in his motion to suppress. ECF Doc. 7-1 at 113. He also argued that appellate counsel's assistance was ineffective because he failed to raise the following issues on appeal:

1. appellant's conviction of murder was against the manifest weight of the evidence;

2. insufficiency of evidence;

3. involuntary manslaughter (was not raised as a lesser included offense of murder in violation of due process of law); and

4. prosecutorial misconduct.

ECF Doc. 7-1 at 115. The state filed a memorandum in opposition. ECF Doc. 7-1 at 118. On March 7, 2018, the Ohio Court of Appeals denied Johnson's application because it was untimely and because Johnson had not shown good cause to excuse its untimeliness pursuant to Ohio App. R. 26(B)(1).

Johnson did not appeal that decision to the Ohio Supreme Court and his deadline for appealing expired on Monday, April 23, 2018. Ohio S.Ct. Prac. R. 7.01(A)(1)(a)(i); Ohio S.Ct. Prac. R. 3.03(A)(1).

III. Federal Habeas Corpus Petition

On April 1, 2019, Johnson, through counsel, filed a timely^[3] petition for writ of habeas corpus under 28 U.S.C. § 2254 in this court.4 Johnson has asserted the following grounds for relief:

GROUND ONE: The trial court erred in denying defendant's motion to suppress his statements.

Supporting Facts: Mr. Johnson was intoxicated and under the influence of pain medication (provided by medical personnel as a result of a gun shot wound) when he waived his Miranda rights and made statements to law enforcement. As such, the waiver was not made intelligently, knowingly, or voluntarily. ECF Doc. 1 at 6.

GROUND TWO: Petitioner did not receive effective assistance of appellate counsel as guaranteed by the 6th Amendment to the United States Constitution.

Supporting Facts: Appellate counsel failed to raise the issues of whether Mr. Johnson's waiver of his right to counsel and right to remain silent was made knowingly and intelligently. The Court of Appeals' decision acknowledges such. Instead, appellate counsel raised only the issue of whether the waiver was made voluntarily. Given the underlying evidence and argument regarding Mr. Johnson's condition at the time of the alleged waiver, the appropriate, relevant, and effective issues to raise with respect to that waiver were whether they were knowing and intelligent. That is, did Mr. Johnson have a full understanding of the nature of the rights he was forfeiting and the consequences of abandoning those rights. ECF Doc. 1 at 8.

Warden Sheldon opposes Johnson's claims and urges the court to dismiss the claims and deny the petition. ECF Doc. 7. Johnson has filed a traverse in which he withdrew his Ground One claim. ECF Doc. 10. Warden Sheldon has filed a reply. ECF Doc. 11.

IV. Facts

We begin with a recitation of the factual findings of the Ohio Courts. The Ohio Court of Appeals summarized the relevant facts as follows:

{¶ 2} Around 1:45 a.m. on February 12, 2016, Johnson shot and killed Darnell Mitchell at the Classic Lounge in Toledo. An off-duty Toledo police officer who was providing security at the bar heard gunshots and saw Johnson holding a gun, prompting the officer to shoot and disable Johnson. The bullet struck Johnson in the back of his left shoulder and caused a superficial wound. He was arrested and taken by ambulance to the Toledo Hospital for treatment.

{¶ 3} Johnson arrived at the hospital around 2:00 a.m. His blood alcohol level was tested when he arrived and is recorded in Johnson's medical records as .27 percent. The medical records indicate that Johnson was combative upon arrival and received sedating medications. The records also show that Johnson received a prescription for a narcotic painkiller upon his discharge. The hospital discharged Johnson to the custody of the Toledo Police Department (“TPD”) at 2:19 p.m. TPD officers took him to the police department for

questioning. Sergeant Kevin Korsog and Sergeant Tim Campbell interviewed Johnson beginning at 3:10 p.m. The interview lasted approximately one hour (including periods where Johnson sat in the room by himself for several minutes). Officers took Johnson into custody at the end of the interview.

{¶ 4} On February 19, 2016, the grand jury indicted Johnson on one count of aggravated murder in violation of R.C. 2903.01(A) and one count of murder in violation of R.C. 2903.02(B). Both counts included gun specifications. On May 23, 2016, Johnson filed a motion seeking to suppress his statements to the police because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On May 31, 2016, the trial court held a suppression hearing. The state presented Sergeant Korsog's testimony and admitted the recording of the interview into evidence. Johnson did not present any evidence.

{¶ 5} Sergeant Korsog testified that he was involved in the investigation of Mitchell's murder. He and Sergeant Campbell interviewed Johnson as part of the investigation. The interview took place approximately 13 hours after Johnson was shot and almost an hour after he was discharged from the hospital. Although Johnson arrived at the police station in a hospital gown, the transport officers reported that Johnson did not display any unusual behavior while on the way to the police station.

{¶ 6} Sergeant Korsog testified that before he interviews a suspect, victim, or witness, his normal practice is to first assess whether the interviewee