Shine-Johnson v. Warden, Belmont Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

JOSEPH SHINE-JOHNSON,

Petitioner, : Case No. 2:20-cv-1873

- vs - Chief Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

WARDEN,

Belmont Correctional Institution,

:

Respondent.

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. 10th

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. 10th 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 (6th 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 (6th 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 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228

(6th Cir. 1976). “A state cannot be said to have a federal due process obligation to follow all of its

procedures; 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 (6th 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 deference

under 28 U.S.C. § 2254(d)(1)(Am. Return of Writ, ECF No. 46, PageID 5765).

Shine-Johnson raised prosecutorial misconduct as his first assignment of error on direct

appeal and the Tenth District decided that assignment as follows:

[*P72] In his first assignment of error, appellant contends that

prosecutorial misconduct denied him of his right to a fair trial. For

the following reasons, we disagree.

[*P73] As stated in State v. Thompson, 141 Ohio St.3d 254, 2014-

Ohio-4751, ¶ 162, 23 N.E.3d 1096:

To evaluate allegations of prosecutorial misconduct, we

"must determine (1) whether the prosecutor's conduct was

improper and (2) if so, whether it prejudicially affected [the

defendant's] substantial rights." State v. LaMar, 95 Ohio

St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 121.

Because prosecutorial misconduct implicates due-process

concerns, "[t]he touchstone of the analysis 'is the fairness

of the trial, not the culpability of the prosecutor.'" State v.

Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d

948, ¶ 200, quoting Smith v. Phillips, 455 U.S. 209, 219,

102 S.Ct. 940, 71 L.Ed.2d 78 (1982). We "will not deem a

trial unfair if, in the context of the entire trial, it appears

clear beyond a reasonable doubt that the jury would have

found the defendant guilty even" absent the misconduct.

LaMar at ¶ 121.

1. Misstatements of the Law

[*P74] "The prosecuting attorney does not instruct the jury on the

law, the trial judge does." State v. Palmer, 7th Dist. No. 89-B-28,

1996 Ohio App. LEXIS 3683 (Aug. 29, 1996). However, a

prosecuting attorney should not mislead the jury by either misstating

the law or the facts. State v. Crossty, 12th Dist. No. CA2008-03-070,

2009-Ohio-2800, ¶ 45, citing State v. Depew, 38 Ohio St.3d 275,

228, 528 N.E.2d 542 (1988).

[*P75] Appellant first contends the prosecutor misstated the law of

self-defense by improperly adding a "duty to avoid trouble" to

appellant's burden of showing he was not at fault in creating the

affray and implying appellant violated this duty by going home to a

potential family argument. (Appellant's Brief at 2.) Appellant cites

to the following portion of his cross-examination by appellee as the

misstatement of law:

Q. A duty to avoid trouble. You know you're walking in to

an [sic] fight, don't you?

[Objection, overruled]

* * *

Q. That's your testimony? You could go up there?

A. Yes.

Q. You could go up there and say, mom, dad is high again.

I don't know what's going on. I'm crashing here tonight.

That would have been absolutely fine, wouldn't it?

A. But at that point in time I'm not sure as of what is going

on. So I would not have no idea what is going on until I

actually get into the house.

Q. A duty to avoid.

[Objection, sustained as to the prosecutor's comment]

* * *

Q. You know there's a problem and you don't try to avoid

that problem?

A. I did try to avoid the problem.

Q. By going to that problem. That's how you try to avoid

the problem, by walking into that situation?

(Tr. Vol. 5 at 982, 984.)

[*P76] In State v. Ellis, 10th Dist. No. 11AP-939, 2012-Ohio-3586,

¶ 12, this court stated:

It is very well-established that, in order to successfully

utilize the affirmative defense of self-defense in a case

where a defendant used deadly force, such as the case

here, the defendant must prove all three of the following:

(1) he was not at fault in creating the situation giving rise

to the affray; (2) he had a bona fide belief he was in

imminent danger of death or great bodily harm and that

his only means of escape from such danger was the use

of deadly force; and (3) he did not violate any duty to

retreat or avoid the danger. State v. Jackson, 22 Ohio

St.3d 281, 283, 22 Ohio B. 452, 490 N.E.2d 893 (1986);

State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 755

(1979), paragraph two of the syllabus.

(Emphasis added.)

[*P77] Our review of the transcript shows the prosecutor was

attempting to establish appellant chose to return home almost

immediately after receiving a text from his father stating "bring your

ass here" that admittedly caused him to worry, despite his prior

testimony that his father was using drugs, became violent when

angry, and was known to pull out guns, and despite the fact that

appellant was welcome to stay in his mother's nearby home. (Tr.

Vol. 5 at 982.) Appellant does not argue that a "duty to avoid" is an

improper consideration altogether but, instead, essentially believes

the prosecutor inappropriately suggested that because appellant

returned home to a possible confrontation he was at fault in creating

the situation giving rise to the affray—a separate self-defense

requirement.

[*P78] Contrary to appellant's argument, the prosecutor did not

expressly connect the duty to avoid trouble with the not-at-fault

element and was instead pursuing a line of questioning directly

regarding the duty to avoid the danger. Furthermore, appellant cites

no authority to support his claim it is erroneous or prejudicial error

for the prosecutor to impliedly connect the duty to avoid trouble

with the not-at-fault element. To the contrary, this court has noted

the multitude of cases in which facts showing a defendant who

chooses to confront the victim with otherwise lawful actions support

both the finding that the defendant was at fault in creating the

situation giving rise to the affray and/or a finding that the defendant

violated a duty to avoid danger or retreat. Ellis at ¶ 16 (finding, based

on a multitude of similar cases, "the jury could properly find

appellant at fault and/or he did not comply with his duty to avoid

danger because he chose to enter a place where he knew the victim

and [his ex-girlfriend] would be despite knowing that a

confrontation might ensue, he chose to stay in the store even after a

confrontation ensued with [his ex-girlfriend], and he chose to follow

the victim and [his ex-girlfriend] out of the store and engage in a

further confrontation outside instead of staying inside the store or

walking away from the volatile situation"). Therefore, we do not

find the prosecutor's conduct to be improper.

[*P79] Finally, we note, although appellant does not allege the

prosecutor misstated the law of duty to retreat from one's home, he

argues that the prosecutorial error alleged here was "compounded

by the fact that [appellant] did not have a duty to retreat from his

own home." (Appellant's Brief at 17-18.) Pursuant to R.C.

2901.09(B), "a person who lawfully is in that person's residence has

no duty to retreat before using force in self-defense, defense of

another, or defense of that person's residence." See also Hubbard,

2013-Ohio-2735, at ¶ 51 (stating that, contrary to the general rule

that a person may not kill in self-defense if he has available a

reasonable means of retreat from the confrontation, "[w]hen a

person is attacked in their home, * * * they have no duty to retreat

before using force in self-defense" pursuant to R.C. 2901.09(B)).

The prosecutor's cited statement here did not concern appellant's

duty or lack thereof to retreat from danger once inside his own home,

and appellant does not cite to case law extending R.C. 2901.09(B)

to a defendant's choice to return home to potential trouble.

Therefore, we find appellant has not demonstrated error in this

regard.

[*P80] Considering all the above, we do not find the prosecutor's

statements regarding the "duty to avoid" to be improper.

[*P81] Appellant next contends the prosecutor misstated the law

by stating during her closing argument that because appellant had

raised self-defense he was "admitting murder" and so appellee's

burden of proof on the murder count was "done." (Appellant's Brief

at 18.) According to appellant, this statement implied that the burden

of proof on the murder count was automatically met, and a juror may

have signed a guilty verdict because of the prosecutor's

misstatement of the law.

[*P82] Prosecutors are afforded considerable latitude in closing

arguments. State v. Dillon, 10th Dist. No. 04AP-1211, 2005-Ohio-

4124, ¶ 50, citing State v. Ballew, 76 Ohio St.3d 244, 255, 1996-

Ohio 81, 667 N.E.2d 369 (1996). A prosecutor's isolated comments

are not to be taken out of context and given their most damaging

meaning. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 94,

781 N.E.2d 88, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647,

94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). Rather, an appellate court

must review a closing argument in its entirety to determine whether

prejudicial error occurred. Id., citing State v. Frazier, 73 Ohio St.3d

323, 342, 1995- Ohio 235, 652 N.E.2d 1000 (1995). Moreover, "[i]n

closing argument, a prosecutor may comment on '"what the

evidence has shown and what reasonable inferences may be drawn

therefrom."'" Dillon at ¶ 50, quoting State v. Lott, 51 Ohio St.3d 160,

165, 555 N.E.2d 293 (1990), quoting State v. Stephens, 24 Ohio

St.2d 76, 82, 263 N.E.2d 773 (1970).

[*P83] "R.C. 2901.05 requires the prosecution to prove beyond a

reasonable doubt every element of a homicide offense as defined by

statute, and does not require the defendant to disprove an essential

element of this offense." Martin, 21 Ohio St.3d 91, 21 Ohio B. 386,

488 N.E.2d 166, at syllabus. Thus, in this case, appellee had the

burden to prove beyond a reasonable doubt that appellant violated

R.C. 2903.02, which states in pertinent part, "[n]o person shall

purposely cause the death of another[.] * * * Whoever violates this

section is guilty of murder." R.C. 2903.02(A) and (D).

[*P84] A defendant must prove, by a preponderance of the

evidence, the affirmative defense of self-defense. Id. at syllabus;

R.C. 2901.05(A). Self-defense "admits the facts claimed by the

prosecution and then relies on independent facts or circumstances

which the defendant claims exempt him from liability." Id. at 94

("Self-defense seeks to relieve the defendant from culpability rather

than to negate an element of the offense charged."). State v. Johnson,

10th Dist. No. 06AP-878, 2007-Ohio-2792, ¶ 30 (finding that self-

defense is not considered in a sufficiency argument, since, as an

affirmative defense, it involves an excuse or justification for doing

an otherwise illegal act).

[*P85] Here, in the portion of closing argument referenced by

appellant, appellee stated:

Reasonable doubt. Yeah, I've got to prove that he

purposefully, with prior calculation and design, caused the

death of Joe Bythewood, Jr., that it happened here in

Franklin County and he's the one that did it. And I have to

prove it to you beyond a reasonable doubt.

But, ladies and gentlemen, by alleging self-defense he's

saying, yeah, I did purposely cause the death of Joe

Bythewood, Jr., which in the State of Ohio we call murder.

Now, he would even want -- he admitted that, yeah, I did

that when [defense counsel] asked him. But when I asked

him the same question though, no, no, no, no. He's not

saying it's an accident, though. He's not saying somehow

it's a reckless act. It was a purposeful act. I had to do it

because.

So I would argue that on his defense, asserting self-defense

-- it doesn't relieve me of it, but logically by saying, I did

it, but murder is -- murder is presumed before you -- you

don't get to self-defense unless you're admitting murder.

And in this case I would argue to you they are admitting

murder.

See, I've got to prove each and every element beyond a

reasonable doubt, but in Count 2, that's done.

(Tr. Vol. 5 at 1185-86.) Following this statement, the prosecutor

went on to point out that "[t]hen you've got to look at all of the

evidence bearing on self-defense" and to argue that appellant was

not justified in killing his father in the circumstances based on the

testimony presented. (Tr. Vol. 5 at 1188.)

[*P86] At the end of the closing statement, appellant objected,

arguing that it was incorrect to tell the jury that in asserting self-

defense appellant was admitting murder, because murder is a

purposeful killing without justification and all appellant was

admitting to is a purposeful killing. Because the objection was not

made contemporaneously, the trial court declined to decide whether

the closing remarks were in error or to instruct the jury on the point.

[*P87] At the outset, we note appellant has not cited cases in

support of such a statement rising to the level of prosecutorial error.

Our review of the prosecutor's statement shows the prosecutor

repeatedly emphasized appellee had the burden to prove each

element of the charged offenses beyond a reasonable doubt and was

making the point the appellant admitted to purposeful killing, which,

pursuant to R.C. 2903.02, is defined as "murder." The prosecutor

then went on to discuss self-defense and her argument as to why the

evidence shows appellant was not justified in killing his father.

Looking at the prosecutor's statement in the larger context of the

closing argument, we find the prosecutor's statement does not rise

to the level of error.

2. Assertion of Personal Opinion on Appellant's Guilt During

Opening and Closing Arguments

[*P88] A prosecutor generally may not express his personal belief

or opinion as to credibility of a witness or as to the guilt of the

accused. Crossty, 2009-Ohio-2800, at ¶ 45. However, a prosecutor

may comment on the testimony and suggest the conclusions to be

drawn from it. Id.; Oteng, 2015-Ohio-1231, at ¶ 83. In doing so, the

prosecutor may express his or her personal opinion if he bases that

opinion on the evidence presented in court. State v. Belmonte, 10th

Dist. No. 10AP-373, 2011-Ohio-1334, ¶ 31; State v. Keenan, 66

Ohio St.3d 402, 408, 613 N.E.2d 203 (1993). See, e.g., Thompson,

2014-Ohio-4751, at ¶ 193, 141 Ohio St. 3d 254, 23 N.E.3d 1096

(finding "nothing improper" about the prosecutor's argument that the

defense theory is "absurd").

[*P89] Appellant asserts the prosecutor first improperly stated her

personal opinion in her opening statement when she said "[t]o me

it's not a self-defense case, but I'm going to talk about it." (Tr. Vol.

1 at 74.) Appellant objected, and the trial court sustained the

objection. Next, appellant asserts the prosecutor improperly stated

her personal opinion in her closing statement when she said:

Officer Mackley said, we didn't secure that weapon. It

wasn't a threat. There's no way this guy could even reach

it. Yet, somehow just moments earlier he's got this gun in

his hand. They want you to believe that, that's fine; I don't

buy it.

(Tr. Vol. 5 at 1134.) Appellant again objected, and the trial court

sustained the objection.

[*P90] We first note that appellant is attempting to predicate

prosecutor error on objections the trial court sustained. As such, we

may reject these claims. Thompson at ¶ 177; State v. Hale, 119 Ohio

St.3d 118, 2008-Ohio-3426, ¶ 162, 892 N.E.2d 864; Viox v.

Weinberg, 169 Ohio App.3d 79, 2006-Ohio-5075, ¶ 36, 861 N.E.2d

909 (1st Dist.).

[*P91] Regardless, viewed in context, although the prosecutor's

statements reflected her opinion, that opinion was based on the facts

of the trial. Belmonte. Furthermore, appellant's substantial rights

were not prejudicially affected. The trial court instructed the jury:

First of all, it is your exclusive duty to decide all questions of fact

that are submitted to you. In connection with this duty, you must

determine the effect and value of the evidence and you must not be

influenced in your decision by any sympathy, prejudice, or passion

toward any party, witness, or attorney.

* * *

I want you to remember, however, that the attorneys are not

witnesses. And since it is your duty to decide this case solely on the

evidence which you see or hear in this case, you must not consider

as evidence any statement of any attorney made during the trial.

(Emphasis added.) (Tr. Vol. 1 at 58-60.)

[*P92] In its written instructions, the trial court also instructed the

jury they were charged with deciding the disputed facts and to apply

the law given to them and that the opening statements and closing

arguments of counsel were not to be considered evidence. There is

no indication in the record that the jury failed to follow these

instructions. Therefore, appellant's argument lacks merit.

3. Statement of Personal Knowledge of Facts

[*P93] Appellant contends the prosecutor improperly stated

personal knowledge of facts in the following exchange during cross-

examination of appellant regarding the social media post:

Q. And you told this jury yesterday, once again, something

random you're just saying, correct?

A. Yes. It's actually a quote from a movie.

Q. In fact, yeah. I tried to find that quote. You're saying it's

from Doc Holliday in Tombstone.

A. Yes.

Q. Well, since I couldn't find that quote –

(Emphasis sic.) (Tr. Vol. 5 at 942.) At that point, appellant objected.

The court overruled the objection. The prosecutor continued

questioning appellant about the meaning of the quote and did not

again attempt to state that he could not find it in the movie.

[*P94] It is improper for a prosecutor in a criminal jury trial to state

"what amounts to testimonial assertions under the pretext that he is

merely asking a question." (Internal citations omitted.) State v.

Urbina, 10th Dist. No. 15AP-978, 2016-Ohio-7009, ¶ 45, 72 N.E.3d

105. In this case, it appears that the prosecutor began to improperly

assert personal knowledge or outside research into the movie

Tombstone into the line of questions about the social media post's

meaning.

[*P95] However, the jury was specifically instructed "[y]ou must

not draw any inference or speculate on the truth of any suggestion

included in a question that was not answered." (Jury Instructions at

3.) The question was not answered, the prosecutor did not reassert

the quote was not in the movie, and in follow-up questions appellant

had the chance to clarify the quote did not actually include the word

"tombstone" but, instead, appellant wrote "becomes tombstone" as

a reference to the movie itself. (Tr. Vol. 5 at 946.) Moreover,

whether or not the quote was from or referencing to the movie had

little, if any, impact on whether it was nonetheless a veiled threat or

not. Considering the above, we do not find appellant was deprived

of a fair trial.

4. Curative Instructions

[*P96] Appellant challenges the trial court's failure to provide

curative instructions in several of the situations already addressed:

after sustaining the objection to the duty to avoid comment (rather

than question) made by the prosecutor; after refusing to remedy the

prosecutor's comment in his closing argument that appellant

admitted murder; and after sustaining objections to the prosecutor's

statements of personal opinion.

[*P97] Appellant requested a curative instruction regarding the

prosecutor's comment in his closing argument that appellant

admitted murder, which the trial court declined to do because of the

untimely objection. We have already found the prosecutor did not

misstate the law within the context of the closing argument.

Therefore, no curative instruction was necessary.

[*P98] Appellant did not request curative instructions in the

remaining challenges. In general, where a party fails to follow up its

objection with a request for a curative instruction, that party waives

its right to assert the error on appeal. State v. Alexander, 10th Dist.

No. 06AP-647, 2007-Ohio-4177, ¶ 36. Therefore, appellant waived

review of this issue, and we decline to address it for the first time

here.

5. Strength of Evidence

[*P99] Appellant argues the evidence supporting appellant's guilt

was not strong enough to overcome the prosecutorial misstatements

in this case, which potentially lead jurors to completely ignore the

self-defense evidence completely. Considering the trial as a whole,

we find it clear, beyond a reasonable doubt, that the jury would have

found appellant guilty even absent any misconduct. Thompson,

2014-Ohio-4751, at ¶ 162, 141 Ohio St. 3d 254, 23 N.E.3d 1096

(internal citation omitted) ("We will not deem a trial unfair if, in the

context of the entire trial, it appears clear beyond a reasonable doubt

that the jury would have found the defendant guilty even absent the

[prosecutorial] misconduct."); State v. Smith, 14 Ohio St.3d 13, 15,

14 Ohio B. 317, 470 N.E.2d 883 (1984). Thus, appellant's

substantial rights were not prejudicially affected in this case.

Thompson.

[*P100] Accordingly, we overrule appellant's first assignment of

error.

Shine-Johnson asserts any perceived procedural default on Grounds One through Five is to

be imputed to the State (Traverse, ECF No. 81, PageID 6096, citing Coleman v. Thompson, 501

U.S. 722, 754 (1991)). The procedural default doctrine in habeas corpus is described by the

Supreme Court in Coleman as follows:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause of the default and actual

prejudice as a result of the alleged violation of federal law; or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

501 U.S. at 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a

petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise

in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v.

Isaac, 456 U.S. 107, 110 (1982).

As shown by the lengthy quotation from Shine-Johnson I, the Tenth District extensively

discussed Shine-Johnson’s prosecutorial misconduct claims. He had two different appointed

counsel in that proceeding and again raised the claim in a Motion for Reconsideration which the

Tenth District rejected (Am. State Court Record, ECF No. 45, Exs. 63, 68). The public defender

who was his second attorney on direct appeal was forced to withdraw because Shine-Johnson

created a conflict of interest by accusing counsel of ineffective assistance. Id. at Ex. 65.

Nonetheless, the Tenth District appointed new counsel to consider the appropriateness of an appeal

to the Supreme Court of Ohio. Id. at Ex. 67. That new attorney did indeed appeal to the Supreme

Court of Ohio, but did not include a claim of prosecutorial misconduct (Memorandum in Support

of Jurisdiction, (Am. State Court Record, ECF No. 45-1, Ex. 71).

Having been accused of ineffective assistance of appellate counsel, the public defender did

what the law required of him: he sought to be replaced. The Tenth District did so before it decided

the Motion for Reconsideration. It went further than the law requires1 by appointing counsel for

the remainder of the direct appeal proceedings, but also for further appeal to the Supreme Court of

Ohio.

Shine-Johnson now claims he did not want counsel on appeal to the Supreme Court

(Traverse, ECF No. 81, PageID 6096). Indeed he claims:

The petitioner filed a pro se motion and the state record clearly

shows he was able to comply with all the procedures of the Ohio

Supreme Court to timely file. The petitioner could have continued

on his own to the Supreme Court Pro Se and incorporate all the

1 The Sixth Amendment only requires appointment of counsel on a first appeal as of right and not on further

discretionary appeal.

claims he wished and would have easily complied with any state

procedure.

Id. However, he gives no record reference for this supposed pro se motion or anything in the state

court record that supposedly shows he was ready to proceed pro se. He did not fire appointed

counsel or seek leave from the Supreme Court of Ohio to proceed pro se. He makes unspecific

claims that one or more of his attorneys did not follow his instructions, but he provides no proof

of those instructions.

After the Supreme Court of Ohio denied review of the counsel-filed appeal, Shine-Johnson

filed a subsequent motion for delayed appeal to which he attached an Affidavit complaining of

Attorney Cramer’s omissions (Am. State Court Record, ECF No. 45-1, Ex. 74). He states the

Affidavit is unrebutted and therefore must be accepted as true. That is not so. Affidavits of their

very nature are hearsay, which need not be accepted, and there was no occasion for the State to

attempt to “rebut.”

Because Shine-Johnson was not entitled to appointed counsel on appeal to the Supreme

Court of Ohio, any errors or omissions of that attorney do not amount to unconstitutional

ineffective assistance of counsel. Shine-Johnson allowed the attorney to act on his behalf in the

Supreme Court without protest. Thus any errors or omissions are attributable to Shine-Johnson as

the client and not to the State of Ohio.

Petitioner also claims any procedural default should be excused because he is actually

innocent (Traverse, ECF No. 81, PageID 6110, et seq.; Section labeled “Manifest Injustice”).

The petitioner has come forward with new evidence a sworn

affidavit of testifying witness Alexis Quinn that was not presented

at trial that the State witnesses knew the decedent Joe Bythewood

had prior calculation to confront the petitioner when he came home

about money and is sufficient to prove actual innocence. See

(Traverse, Exhibit D).

The Quinn Affidavit is dated February 2, 2021, and in the file at ECF No. 81, PageID 6306-11. It

is properly considered on the actual innocence question because that exception to procedural

default requires the presentation of new evidence, not presented at trial. Schlup v. Delo, 513 U.S.

298 (1995); Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). However, the Quinn Affidavit is not of

the sort required by Schlup. "To be credible, such a claim requires petitioner to support his

allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented

at trial." Schlup, 513 U.S. at 324. Ms. Quinn’s Affidavit shows that she was in the house when the

confrontation occurred between the decedent, her father, and Petitioner, her brother. However she

did not witness the violence as her father told her to go upstairs and she did. She offers bad

character evidence about the decedent, including that he raped her and was drug-addicted, but this

does not prove Petitioner was innocent. She also avers that the prosecutor coached her with respect

to her trial testimony, but that also does not prove her brother is innocent. In sum, the Quinn

Affidavit does not prove the actual innocence exception to procedural default.

Merits of the Prosecutorial Misconduct Claim

Shine-Johnson continues to insist that the prosecutor’s statements about his duty to avoid

danger misstate the law because he had no duty to retreat in his own home. The Tenth District’s

decision makes a clear distinction between the two duties involved. As it notes self-defense

doctrine in Ohio requires that the person claiming he acted in self-defense must not be at fault for

creating the situation, the affray, in which the deadly confrontation takes place. Shine-Johnson I,

¶ ¶ 76-77. The prosecutor was arguing that Shine-Johnson knew when he responded to the victim’s

summons “to get his ass home” that there was going to be an argument and that, given the victim’s

short temper, it was likely to get violent. He was not in his home2 when the duty to avoid danger

arose and he was under no compulsion to go there at the time he was summoned.

In deciding the First Assignment of Error, the Tenth District applied the correct federal

standard from Donnelly v. DeChristoforo, 416 U.S. 637 (1974), cited at Shine-Johnson I, ¶ 82.

The Sixth Circuit has articulated the relevant standard for habeas claims of prosecutorial

misconduct. Prosecutorial misconduct justifies federal habeas relief only if it “so infected the trial

with unfairness as to make the resulting conviction a denial of due process” and resulted in

prejudice. Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (quoting Darden v. Wainwright,

477 U.S. 168, 181 (1986)).

Once we find that a statement is improper, four factors are

considered in determining whether the impropriety is flagrant: (1)

the likelihood that the remarks would mislead the jury or prejudice

the accused, (2) whether the remarks were isolated or extensive, (3)

whether the remarks were deliberately or accidentally presented to

the jury, and (4) whether other evidence against the defendant was

substantial. See Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000).

Under [the] AEDPA, this bar is heightened by the deference we give

to the . . . [Ohio] Supreme Court’s determination of . . . [Petitioner’s]

prosecutorial-misconduct claims. See Macias v. Makowski, 291

F.3d 447, 453-54 (6th Cir. 2002)(“If this court were hearing the case

on direct appeal, we might have concluded that the prosecutor’s

comments violated Macias’s due process rights. But this case is

before us on a petition for a writ of habeas corpus. So the relevant

question is not whether the state court’s decision was wrong, but

whether it was an unreasonable application of clearly established

federal law.”).

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003). See also Bates v. Bell, 402 F.3d 635,

641 (6th Cir.), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005); Goff v. Bagley,

2 Apparently Shine-Johnson lived in the basement of this house; it was from there that he retrieved the shotgun with

which he shot the victim.

601 F.3d 445, 480 (6th Cir. 2010). See also LaMar v. Houk, 798 F.3d 405, 430 (6th Cir., 2015).

As the cited authority makes clear, the first step in analyzing a prosecutorial misconduct

claim is to determine if the prosecutor’s conduct was improper. Here the Tenth District determined

that the asserted misstatement of law was not a misstatement of Ohio law. On that point this Court

is bound by the Tenth District’s determination. Bradshaw v. Richey, 546 U.S. 74 (2005). Shine-

Johnson relies on assorted case law which tells federal courts what state authorities to look to when

the federal court must decide an issue of state law in the first instance, e.g., in a case under diversity

of citizenship jurisdiction. That authority does not apply in a case such as this when we are not

deciding in the first instance what Ohio law is applicable.

Petitioner argues he did not know he was walking into a fight: “The circumstances in the

home that time the petitioner was unaware of because he was had not been at home all day.”

(Traverse, ECF No. 81, PageID 6130). But the jury heard testimony from the person he was with

when he got the summons about what he said in anticipation of what he would find when he went

home. There was ample evidence from which the jury could decide that Shine-Johnson was at

fault for setting up the confrontation by going to the house on Grasmere.

Shine-Johnson next complains that the prosecutor misstated the burden of proof (Traverse,

ECF No. 81, PageID 6150-59). Here again the Tenth District found no misconduct on the part of

the prosecutor. Shine-Johnson I, ¶¶ 81-87.

Petitioner next complains that the prosecutor repeatedly and improperly asserted personal

knowledge of guilt (Traverse, ECF No. 81, PageID 6160-62). The Tenth District rejected this

argument entirely as to comments to which objections were sustained and otherwise found the

prosecutor’s comments were properly based on evidence the jury had heard. Shine-Johnson I, ¶¶

88-92.

Shine-Johnson next argues the prosecutor improperly appealed to the jury’s emotions by

playing the recording of the 911 call Alexis Quinn made after the victim was shot (Traverse, ECF

No. 81, PageID 6168-71). The Tenth District decided this claim as follows:

[*P105] Appellant additionally argues the prosecutor improperly

appealed to the emotions of the jury in seeking to have Alexis's 911

call—which contained her stating "[o]h, my God" multiple times,

that she was scared, and that there was too much blood, "[t]his is my

dad" and "this is my daddy," pleads for medics to hurry, and

crying—to be played for the jury. (Tr. Vol. 3 at 406-07.) Appellant

contends the call added nothing to appellee's case and was played to

appeal to the jury's emotions. Before the 911 recording was played,

defense counsel objected on the basis that the recording was

"duplicitous and place[d] undue emphasis on Alexis's] testimony"

but did not object on the ground that the 911 call was unfairly

prejudicial. (Tr. Vol. 3 at 403.) The trial court permitted the

recording to be played as a present sense impression. The jury in its

deliberations asked for timestamps of the 911 calls.

[*P106] "Prosecutors may not deliberately saturate trials with

emotion and a conviction based solely on the inflammation of fears

and passions, rather than proof of guilt." State v. Weston, 7th Dist.

No. 12 MA 122, 2014-Ohio-4252, ¶ 58, citing Keenan, 66 Ohio

St.3d at 409. However, 911 calls may be relevant and probative, for

example, in determining the timing and sequence of events and in

testing the consistency of a witness's account. See State v. Brodbeck,

10th Dist. No. 08AP-134, 2008-Ohio-6961, ¶ 54 (discussing alleged

inconsistencies between 911 call and stipulations and witness

testimony); State v. Sprouse, 10th Dist. No. 05AP-467, 2006 Ohio

App. LEXIS 4174 (Aug. 17, 2006) (discussing allegedly highly

prejudicial 911 call demonstrated sequence of events and helped to

lend credence to victim's account).

[*P107] We note, in this case, the jury asked for timestamps of the

911 call, implying it found it useful in making its determination in a

manner outside of its emotionally charged content. Based on this

record, appellant has not shown that the prosecutor improperly

sought to incite emotion or sympathy in playing the 911 call from

Alexis, and we find its use was reasonably calculated to assist the

jury in understanding the sequence of events and in evaluating the

evidence.

[*P108] Furthermore, the trial court instructed the jury to consider

all the evidence without bias, sympathy, or prejudice. An appellate

court presumes that the jury follows the trial court's instructions.

McKelton, 2016-Ohio-5735, at ¶ 190, 148 Ohio St. 3d 261, 70

N.E.3d 508. Therefore, we disagree that any error in this regard

would have affected the outcome of the trial.

Shine-Johnson I.

The typical prosecutor appeal to emotions which is misconduct is the use of rhetorical

language by a prosecutor imploring the jury to, for example, put itself in the position of the

deceased’s family. Here the Tenth District reasonably determined that the 911 call provided

relevant evidence about the timeline of events, a conclusion corroborated by the jury’s request for

the timeline. It is not misconduct to place relevant evidence, however emotional it may be in itself,

before a jury.

Shine-Johnson emphasizes that the trial court found enough evidence supported his self-

defense claim that it gave a self-defense instruction (Traverse, ECF No. 81, PageID 6177). As in

so many other places in the Traverse, Petitioner confuses the question of whether there is sufficient

evidence to place an issue before the jury with the question of whether the jury is bound to accept

the evidence and return a verdict a certain way. The trial court submitted the self-defense claim

to the jury along with all the evidence in the case. Weighing the evidence is the jury’s proper

function and a habeas court must defer to that weighing, especially when it has been confirmed on

appeal. See, for example, Brown v. Konteh, 567 F.3d 191 (6th Cir. 2009).

Shine-Johnson summarizes his belief about why the jury did not find him not guilty:

The Jury likely disregarded all the significant evidence that

undermines the state case and the burden to prove beyond a

reasonable doubt in support of self-defense because of the

prosecutor's many errors and the court's complete failure to remedy

them, and the defense counsel failure to continue to object coupled

with the erroneous jury instructions imposing a non-existent duty to

retreat.

(Traverse, ECF No. 81, PageID 6182). But the jury heard all the evidence in this eleven-day trial

and was instructed on the law in a manner the Tenth District found to be correct under Ohio law.

The appellate court also found the prosecutor had not engaged in misconduct and that conclusion

is not an unreasonable application of Donnelly. Ground One should therefore be dismissed as

procedurally defaulted and also without merit.

Ground Two: Failure to Give Curative Instructions

In his Second Ground for Relief, Shine-Johnson claims he was denied a fair trial because

the trial court failed to give a curative instruction on the prosecutor’s claim in closing argument

that Shine-Johnson had essentially admitted to murder, defined as Ohio law does as a “purposeful

killing.”

Shine-Johnson raised this claim as his Third Assignment of Error on direct appeal and the

Tenth District decided it as follows:

[*P111] In his third assignment of error, appellant contends the

trial court committed prejudicial error and denied him a fair trial by

failing to give curative instructions to the jury when the prosecutor

stated that appellant admitted "murder" by raising self-defense and

that the burden of proof on the murder count was "done" as a result.

(Appellant's Brief at 39.) While defense counsel objected and asked

for a limiting instruction, he did so after the closing argument. The

trial court did not opine on whether the statement was in error but

refused to issue a limiting instruction since an objection was not

contemporaneously filed.

[*P112] As addressed in the first assignment of error, we do not

find that the prosecutor's comments during the closing argument

amounted to error. The prosecutor repeatedly emphasized that

appellee had the burden to prove each element of the charged

offenses beyond a reasonable doubt and was making the point the

appellant admitted to purposeful killing, which, pursuant to R.C.

2903.02, is defined as "murder." The prosecutor then went on to

discuss self-defense and her argument as to why the evidence shows

he was not justified in killing his father. As a result, we disagree

with appellant that a curative instruction was necessary in this case.

Shine-Johnson I. In sum, the appellate court found there was no error to cure and any request for

a curative instruction was untimely because not contemporaneous.

Shine-Johnson asserts any failure to contemporaneously object is excused by the plain error

provisions of Fed. R. Crim. P. 52. But that is a rule applicable to the trial of criminal cases in

federal court in the first instance, not in habeas corpus, as is shown by the fact that all cases cited

by Petitioner are from federal criminal trials (Traverse, ECF No. 81, PageID 6189). The Ohio

contemporaneous objection rule, which the Tenth District enforced in this case, has been

repeatedly upheld by the Sixth Circuit as an adequate and independent state procedural rule.

Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012),citing Keith v. Mitchell, 455 F.3d 662,

673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw,

591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v.

Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing

Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000),

citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542,

557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw,

591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010).

The question whether the prosecutor’s comment was in error or constituted misconduct is

a question of Ohio law. The Tenth District held that it was not in error, much less misconduct.

The defense of self-defense, at least as presented in this case, involves an admission that Shine-

Johnson purposely killed his father. He did not claim the gun in his hand went off accidentally or

that he was not guilty by reason of insanity or that he didn’t know the gun was loaded. His defense

amounted to saying that he intentionally killed because he had to do so to save his own life. The

prosecutor properly characterized Petitioner’s admission of the shooting. As he himself

recognizes, the case was about whether he could persuade the jury he acted in self-defense.

Ground Two should be dismissed because it is procedurally defaulted in two ways: failure

to include it in the appeal to the Supreme Court of Ohio and failure to make a contemporaneous

objection. It is also without merit because the Tenth District’s decision on the merits is a matter

of Ohio law and not an objectively unreasonable application of any Supreme Court precedent.

Ground Three: Failure to Give Requested Instructions

In his Third Ground for Relief, Shine-Johnson claims he was deprived of a fair trial when

the trial court refused to give certain requested jury instructions.

As Petitioner himself acknowledges (Traverse, ECF No. 81, PageID 6194), in order for

habeas relief to be warranted on the basis of incorrect jury instructions, a petitioner must show

more than that the instructions are undesirable, erroneous, or universally condemned; taken as a

whole they must be so infirm that they rendered the entire trial fundamentally unfair. Waddinngton

v. Sarausad, 555 U.S. 179, 192-94 (2009); Henderson v. Kibbe, 431 U.S. 145 (1977). The only

question for a habeas court to consider is "whether the ailing instruction by itself so infected the

entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62

(1991), quoting Cupp v. Naughten, 414 U.S. 141 (1973). The category of infractions that violate

fundamental fairness is very narrow. Levingston v. Warden, 891 F.3d 251 (6th Cir. 2018); Byrd v.

Collins, 209 F.3d 486 (6th Cir. 2000), citing Dowling v. United States, 493 U.S. 342, 352 (1990).

The category of omitted instructions that would violate fundamental fairness is also very narrow.

For example, omission of a reasonable doubt instruction would require a new trial. Sullivan v.

Louisiana, 508 U.S. 275 (1993).

Shine-Johnson argues the right to correct jury instructions is part of the right to submit a

complete defense (Traverse, ECF No. 81, PageID 6195-96, relying on California v. Trombetta,

467 U.S. 479 (1984), and Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). While that is true,

it is the defense as defined by state law, particularly when it is an affirmative defense such as self-

defense. To put it another way, there is no defense of self-defense defined by the United States

Constitution which a defendant must be permitted to present. Keahey v. Marquis, 978 F.3d 474,

478 (6th Cir. 2020).

Petitioner jumbles together his reasons why the Tenth District’s decision is not entitled to

deference:

The State Courts decision was objectively unreasonable for

committing "a clear factual and legal error" and or "merely

assuming" that a certain factual conclusion is correct rather than

systematically scrutinizing the relevant facts; and or uncritically

"deferring" to an individual's assertion (such as, for example, the

prosecution presented evidence outside of the record and misstates

the evidence as basis for an omission or apparent error) rather than

rigorously appraising the validity of that contention; and or erred in

its application of the legal standard to the facts by, for example:

finding a doctrinal exception to be applicable to the facts when it

actually is not; and or failing to give appropriate consideration and

weight to pertinent facts; and or construing or applying some

element of the legal standard in an overly broad or unduly narrow

manner that has the effect of skewing that particular element or

undermining other elements of the standard.

(Traverse, ECF No. 81, PageID 6196; emphasis added). In other words, Petitioner refuses to

specify a ground for not deferring, preferring a shotgun approach to argument. With respect to

factual findings by the state courts, he uses the same approach:

The states [sic] court made an unreasonable determination of the

facts because, the state court failed to make a factual determination

that should have been made; and or Although the state court made

a factual determination, that determination was procedurally

unreasonable because The state court made an evidentiary finding

without holding a hearing; and or Although [sic] the state court held

a hearing, that hearing was not "full and fair"; and or The state court

misconstrued or misstated the record or overlooked or misconstrued

evidence; and or The state court applied an erroneous legal standard

in making the factual determination; and or Although the state court

made a factual determination and employed an adequate procedure

in making that determination the resulting determination is

substantively unreasonable because it is not fairlv supported by the

"evidence presented in the State court proceeding.”

Id. at PageID 6197.

Shine-Johnson then proceeds for nearly fifty pages to argue his interpretation of the

required self-defense instruction in this case (Traverse, ECF No. 81, PageID 6197-6241). He

presented this claim to the Tenth District as a claim that the trial court should have given an

instruction that a cohabitant of a residence has no duty to retreat before using deadly force. The

appellate court decided this claim as follows:

1. Cohabitant Instruction

[*P27] Appellant first challenges the trial court's rejection of his

proposed instruction regarding cohabitants and the "no duty to

retreat" rule as it relates to self-defense. (Appellant's Brief at 44.)

The jury instruction at issue given by the court states:

A person has a duty to retreat unless he is in his residence

* * *.

"Residence" means a dwelling in which a person lives.

A "dwelling" means a building of any kind that has a roof

over it and is designed to be occupied by people at night.

A building includes an attached porch.

(February 24, 2017 Jury Instructions at 11.)

[*P28] Appellant objected to this instruction and requested an

instruction that "there's no duty to retreat from one's own home

before resorting to the use of force and self-defense against a

cohabitant with an equal right to be in the home." (Tr. Vol. 4 at 896.)

Appellant argues this instruction is relevant since appellant was a

cohabitant with his father, was necessary to instruct the jury since

he was assaulted inside the home prior to trying to escape through

the backyard, was not redundant since the instructions given by the

court did not address cohabitants, and was prejudicial since plaintiff-

appellee, the State of Ohio, had elicited testimony that appellant was

not on the lease, was not paying rent, and was not part of the original

family unit, all of which implied he had a lesser right to be at the

home. Appellant also suggests that additional instructions—that a

defendant has to rule out all other means of escape before using

force, could not violate any duty to retreat or avoid the danger, must

not seek a fight armed with a dangerous weapon, and must withdraw

from a fight he started—confused and contradicted the instruction

regarding not retreating from one's own home.

[*P29] Appellee argues it is undisputed that at the time of the

shooting, appellant was not in the house and that the only evidence

before the jury was that appellant was outside the house when he

fired the shot that killed his father. As a result, appellee argues the

cohabitant instruction would have been inappropriate.

[*P30] Under Ohio law, self-defense is an affirmative defense

which a defendant must establish by a preponderance of the

evidence. R.C. 2901.05(A); State v. Martin, 21 Ohio St.3d 91, 94,

21 Ohio B. 386, 488 N.E.2d 166 (1986). To prove self-defense, a

defendant must prove that he: (1) was not at fault in creating the

situation that gave rise to the fight; (2) had a bona fide belief that he

was in imminent danger of death or great bodily harm and that the

use of force was his only means of escape; and (3) he did not violate

any duty to retreat or avoid the danger. State v. Williford, 49 Ohio

St.3d 247, 249, 551 N.E.2d 1279 (1990), citing State v. Robbins, 58

Ohio St.2d 74, 388 N.E.2d 755 (1979), paragraph two of the

syllabus.

[*P31] Generally, one has a duty to retreat, if possible, before

resorting to lethal force. Williford at 250. However, there is no duty

to retreat from one's own home before using force in self-defense.

Hubbard at ¶ 51; R.C. 2901.09(B) ("a person who lawfully is in that

person's residence has no duty to retreat before using force in self-

defense"); State v. Thomas, 77 Ohio St.3d 323, 327, 1997- Ohio 269,

673 N.E.2d 1339 (1997) ("a person who, through no fault of her

own, is assaulted in her home may stand her ground, meet force with

force, and if necessary, kill her assailant, without any duty to

retreat"). The Supreme Court of Ohio has further held that "there is

no duty to retreat from one's own home before resorting to lethal

force in self-defense against a cohabitant with an equal right to be

in the home." Id. at 328.

[*P32] This court has found the "no duty to retreat" exception did

not apply where "the evidence demonstrates the shooting occurred,

at best, in appellant's front yard." State v. McDowell, 10th Dist. No.

10AP-509, 2011-Ohio-6815, ¶ 39, discretionary appeal not allowed,

131 Ohio St. 3d 1512, 2012-Ohio-1710, 965 N.E.2d 312. This

understanding aligns with the definitions set forth in Ohio's no duty

to retreat statutes. As it is used in R.C. 2901.09(A), "residence"

means "a dwelling in which a person resides either temporarily or

permanently or is visiting as a guest," and "dwelling" means "a

building or conveyance of any kind that has a roof over it and that

is designed to be occupied by people lodging in the building or

conveyance at night, regardless of whether the building or

conveyance is temporary or permanent or is mobile or immobile.

[A] building or conveyance includes, but is not limited to, an

attached porch, and a building or conveyance with a roof over it

includes, but is not limited to, a tent." R.C. 2901.05(D)(2) and (3).

[*P33] Appellant has not cited cases in which, despite the

definitions in R.C. 2901.05(D), the no duty to retreat exception

extends to a similar factual situation to the case at hand, where, after

an altercation with a cohabitant inside of the home, the defendant

fires the fatal shot from the yard. Considering all the above, we find

appellant has not demonstrated that the trial court abused its

discretion in declining to provide a jury instruction on the no duty

to retreat rule extending to cohabitants or that the lack of such an

instruction constitutes reversible error in this case.

Shine-Johnson I.

As noted previously, this Court is bound by the Tenth District’s conclusion on what Ohio

law is for purposes of this case. Moreover, Petitioner has cited to this Court no decision by the

Supreme Court of Ohio requiring a “no duty to retreat from a cohabitant” instruction when the

shooting indisputably takes place outside the residence. Petitioner’s sub-claim about the failure to

give the proposed cohabitant instruction is without merit.

Shine-Johnson’s next omitted instruction claim relates to the trial judge’s refusal to give a

limiting instruction regarding his flight from the scene. He claims he was entitled to the instruction

because he fled the scene in fear for his own safety (Traverse, ECF No. 81, PageID 6241). The

Tenth District decided this claim as follows:

[*P46] Appellant contends the trial court abused its discretion in

including a flight instruction in the jury instructions. The instruction

given by the trial court states:

Testimony has been admitted indicating that the defendant

fled the scene. You are instructed that flight alone does not

raise a presumption of guilt but it may tend to indicate the

defendant's consciousness of guilt. If you find that the facts

do not support that the defendant's flight or if you find that

some other motive prompted the defendant's conduct or if

you are unable to decide what the defendant's motivation

was then you should not consider this evidence for any

purpose. However, if you find that the facts support that the

defendant engaged in such conduct, and if you decide that

the defendant was motivated by a consciousness of guilt,

you may, but are not required to, consider that evidence in

deciding whether the defendant is guilty of a crime

charged. You alone will determine what weight, if any, to

give to this evidence.

(Jury Instructions at 1202-03.)

[*P47] Appellant objected to this instruction because the evidence

showed he left the scene in fear of his safety and there was otherwise

insufficient evidence to support the flight instruction. Appellant also

asked the court to instruct the jury that it could consider the fact that

appellant voluntarily surrendered. Appellee contends there was

sufficient evidence to support a flight instruction.

[*P48] On this record, we agree with appellee. It is undisputed that

appellant did not remain at the scene of the shooting but, instead,

left the scene and proceeded on foot to his mother's house. He then

left his mother's house and went to a second residence before

deciding to turn himself in to the police. An inference could be

drawn from this evidence that defendant fled the scene and

continued to flee because of a consciousness of guilt. If the jury

believed appellant's side of the story, the instructions specifically

state the jury is free to decide that another motive, such as fear for

his safety, prompted him to leave the scene. Furthermore, nothing in

the flight instruction negated the jury's ability to consider the fact

that appellant voluntarily surrendered. Therefore, we find the flight

instruction was appropriate, and the trial court did not abuse its

discretion in this regard.

Shine-Johnson I.

The trial court did not instruct the jury that it must or even that it could presume flight

evidenced a consciousness of guilt. The jury was free to believe Shine-Johnson’s testimony about

why he fled3, but it was not compelled to believe that testimony. As the Tenth District held, the

instruction actually given was completely proper under Ohio law.

Shine-Johnson next complains about the refusal of the trial court to give a limiting

instruction on evidence the State presented relating to his character (Traverse, ECF No. 81, PageID

6242-45). The Tenth District decided this claim as follows:

[*P40] Appellant contends the trial court erred in not providing a

limiting instruction pertaining to evidence admitted related to an

allegation that appellant caused a younger, autistic stepbrother to

seek treatment for a concussion in order to show his propensity for

violence and which was unfairly prejudicial in violation of Evid.R.

403(A).

[*P41] "When evidence which is admissible as to one party or for

one purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request of a party, shall restrict

the evidence to its proper scope and instruct the jury accordingly."

Evid.R. 105. The rule on character evidence, Evid.R. 404, provides

in pertinent part:

(A) Character evidence generally. Evidence of a person's

character or a trait of character is not admissible for the

purpose of proving action in conformity therewith on a

particular occasion, subject to the following exceptions:

(1) Character of accused. Evidence of a pertinent trait of

character offered by an accused, or by the prosecution to

rebut the same is admissible * * *.

* * *

(3) Character of witness. Evidence of the character of a

witness on the issue of credibility is admissible as provided

in Rules 607 [Impeachment], 608 [Evidence of character

and conduct of witness], and 609 [Impeachment by

evidence of conviction of crime].

(B) Other crimes, wrongs or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes, such as

3 Although why would it? The only person who had threatened his safety was dead.

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

[*P42] Proof of character may be made by testimony as to

reputation, by testimony in the form of opinion, or, on cross-

examination, by inquiry into a relevant specific instance of conduct

under Evid.R 405(B). Thus, when a defendant introduces evidence

of a particular character trait, usually peacefulness in a trial

involving a violent offense, the defendant "opens the door" for the

prosecution, which is then permitted to rebut or impeach this

character evidence on cross-examination. (Internal citation

omitted.) State v. C.W., 10th Dist. No. 15AP-1024, 2018-Ohio-

1479, ¶ 45; State v. Warsame, 10th Dist. No. 06AP-1254, 2007-

Ohio-3656, ¶ 24. The cross-examination may include inquiry into

relevant specific instances of conduct. Evid.R. 405(A).

[*P43] Here, appellee called Alexis on direct. Appellant, in cross-

examining Alexis, asked whether she knew appellant to be a violent

person and whether he was "one to go out and just try to cause harm

to other people," which Alexis answered in the negative, and

whether appellant tends to try to walk away from confrontation and

tends to "bring the peace," which Alexis answered in the positive.

(Tr. Vol. 3 at 416.) On redirect, appellee asked Alexis about her

answers to these questions, followed by asking whether she knew of

violence he committed and beginning to ask her to "[t]ell us about

him and [his younger stepbrother], the concussion [the stepbrother]

got." (Tr. Vol. 3 at 420.) Appellant objected and the parties

conducted a voir dire examination of Alexis out of the presence of

the jury. The court then disallowed appellee from questioning Alexis

about the specific instance of violence because she did not have

personal knowledge of the incident but allowed questioning

regarding her awareness of situations in which he had gotten into

fights generally. Appellee then resumed questioning of Alexis as

follows:

Q. Referring specifically to the questions [defense counsel]

asked you about your brother's character trait for

peacefulness, do you remember those questions?

A. Yes.

Q. It was your answer on cross-examination that you know

your brother to be a peaceful man, correct?

A. Yes.

Q. But, in fact, you also know of more than one incident of

where he did not act in a peaceful, peacemaker way,

correct?

A. Yes.

Q. Okay. And, in fact, you have direct knowledge of at least

one of those incidents?

A. Yes.

(Tr. Vol. 3 at 438-39.) Appellant denied being involved with any

physical altercations with other members of his family.

[*P44] Our review of the transcript shows appellant introduced

evidence of appellant's character trait of peacefulness, opening the

door for appellee to rebut or impeach this evidence. This is an

exception to Evid.R. 404's prohibition against admitting evidence of

a person's character or a trait of character for the purpose of proving

action in conformity therewith on a particular occasion. Evid.R.

404(A)(1).

[*P45] Moreover, the specific information that appellant deems

prejudicial—the inference that appellant gave his young, autistic

family member a concussion—was contained within the

prosecutor's question. The trial court instructed the jury that

"[e]vidence is all the testimony received from the witnesses, the

exhibits admitted during the trial, and facts agreed to by counsel call

[sic] stipulations" and that "you must not draw any inference or

speculate on the truth of any suggestion included in a question that

was not answered." (Jury Instructions at 2, 3.) Thus, the information

was not "evidence" which would be subject to a limiting instruction,

and the jury is presumed to follow the trial court's instructions. State

v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 190, 70

N.E.3d 508. We find the trial court did not abuse its discretion in

declining to include a jury instruction regarding character evidence

in these circumstances.

Shine-Johnson I. Under Ohio law when a defendant introduces evidence of his own character trait

for peacefulness, he “opens the door” to rebuttal character evidence. That is precisely what the

Tenth District found happened here. There is no Supreme Court precedent the Tenth District failed

to follow in this holding.

In sum, Shine-Johnson’s Third Ground for Relief is procedurally defaulted for failure to

include it on appeal to the Supreme Court of Ohio and without merit because it is not shown to be

an unreasonable application of any precedent of the United States Supreme Court. It should be

dismissed.

Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Shine-Johnson claims he received ineffective assistance

of trial counsel. He agrees that the governing standard for such claims is found in Strickland v.

Washington, 466 U.S. 668 (1984), where the Supreme Court held:

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.

86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011). Petitioner claims the Tenth District’s

application of Strickland was unreasonable (Traverse, ECF No. 81, PageID 6247).

Petitioner’s first cited instance of alleged ineffective assistance of trial counsel is trial

counsels’ failure to object to the prosecutor’s “egregiously improper closing argument.” Id. at

PageID 6251. He expands that claim to other asserted prosecutorial misconduct and then proceeds

to re-argue his claims of prosecutorial misconduct. Id. at PageID 6253-62.

Shine-Johnson raised his ineffective assistance of trial counsel claim as his Fifth

Assignment of Error on direct appeal and the Tenth District decided it as follows:

[*P120] In his fifth assignment of error, appellant contends his

defense counsel rendered ineffective assistance. In order to prevail

on a claim of ineffective assistance of counsel, a defendant must

show that trial counsel's performance fell below an objective level

of reasonable representation and that the defendant suffered

prejudice as a result. Oteng, 2015-Ohio-1231, at ¶ 86, citing

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984).

[*P121] Appellant argues counsel was ineffective for a number of

issues previously raised in this opinion: failing to object to the

prosecutor's conflation of elements of the self-defense test during

the opening statement, the cross-examination of appellant after

being overruled and then sustained, and the closing argument;

failing to timely object to the prosecutor's misstatement of law that

appellant admitted murder; and objecting to the 911 call on the

wrong basis. However, failure to object to error alone ordinarily is

not enough to sustain a claim of ineffective assistance of counsel.

State v. Holloway, 38 Ohio St.3d 239, 527 N.E.2d 831 (1988). See

also State v. Gumm, 73 Ohio St.3d 413, 428, 1995-Ohio-24, 653

N.E.2d 253 (1995) (stating defense counsel's failure to object to

prosecutorial misconduct "does not constitute ineffective assistance

of counsel per se, as that failure may be justified as a tactical

decision"); Strickland at 689, 690, quoting Michel v. Louisiana, 350

U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955) (stating that

counsel is "strongly presumed" to have rendered adequate assistance

and "the defendant must overcome the presumption that, under the

circumstances, the challenged action 'might be considered sound

trial strategy'"). Furthermore, we have already concluded the

arguments posed by appellant here lack merit, and, as a result, an

objection on the grounds of prosecutorial misconduct alleged by

appellant or the 911 call on the basis asserted by appellant would

not likely have been successful. Therefore, trial counsel was not

ineffective for failing to raise those objections.

[*P122] Finally, appellant argues his trial counsel's many errors,

when considered together, deprived him of a fair trial. However, as

we have previously concluded trial counsel did not err in the manner

alleged by appellant, we find no merit in appellant's cumulative error

theory. Accordingly, appellant's fifth assignment of error is

overruled.

Shine-Johnson I. In sum, the Tenth District stood by its prior holdings that the prosecutor did not

commit misconduct. Therefore failure to object did not prejudice Petitioner because the objections

would not have been sustained. It cannot be deficient performance in violation of the first prong

of Strickland to fail to make an objection that was without merit. Neither Strickland nor any of its

progeny hold that a trial attorney performs deficiently when he or she fails to make a meritless

objection. A defendant is not entitled as a matter of constitutional law to hope that a trial judge

would have sustained such an objection.

Ground Four should therefore be dismissed.

Ground Five: Cumulative Trial Court Error

In his Fifth Ground for Relief, Shine-Johnson claims that the accumulated errors of the trial

court entitled him to relief. After enactment of the Antiterrorism and Effective Death Penalty Act

of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), such claims are no longer cognizable

in habeas corpus. Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), cert. denied, 132 S.Ct.

2751 (2011), citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005), cert. denied sub nom.

Moore v. Simpson, 549 U.S. 1027 (2006).

Moreland argues that the cumulative effect of counsel's errors

should be considered in determining whether he has demonstrated a

reasonable probability of a more favorable outcome. However,

"post-AEDPA, not even constitutional errors that would not

individually support habeas relief can be cumulated to support

habeas relief." Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir.

2010) (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)).

Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012), cert. denied sub nom. Moreland v.

Robinson, 134 S. Ct. 110 (2013). See also Ahmed v. Houk, 2014 U.S. Dist. LEXIS 81971, *332

(S.D. Ohio 2014).

Shine-Johnson’s Fifth Ground for Relief should therefore be dismissed for failure to state

a claim upon which habeas corpus relief can be granted.

Ground Six: Ineffective Assistance of Appellate Counsel

In his Sixth Ground for Relief, Shine-Johnson claims he received ineffective assistance of

appellate counsel when his appellate attorney failed to raise as an assignment of error his trial

counsel’s failure to file a motion to dismiss because the State had destroyed exculpatory evidence.

Petitioner alleges “[i]n this case the prosecutor suppressed the fact that the 20 gauge

shotgun4 was purposely taken apart by police before the scientific test were performed on the

weapon and the operable weapon's firing pin was removed and missing.” (Traverse, ECF No. 81,

PageID 6267).

Ohio’s procedure for raising claims of ineffective assistance of appellate counsel is by

filing an application to reopen the appeal under Ohio R. App. P. 26(B). Shine-Johnson filed such

an application of November 27, 2018 (State Court Record, ECF No. 45-1, Ex. 79). The Tenth

District denied the application because it was untimely filed on the ninety-second day after the

appellate judgment when the rule requires filing within ninety days (State v. Shine-Johnson, Case

No. 17AP-194 (10th Dist. Jan. 31, 2019); unpublished, copy at State Court Record, ECF No. 45-1,

Ex. 82).

Ohio App. R. 26(B) allows a late filing if good cause is shown. Shine-Johnson asserted

that he had deposited the application in the prison mailing system on November 15, 2018, and the

4 This is the weapon with which the deceased was allegedly armed, as opposed to the twelve-gauge shotgun with

which petitioner was armed.

prison had processed the cash slip for postage November 19, 2018. However, the application was

not received until November 27, 2018, two days late. Id. The Tenth District held that this was not

good cause, citing a number of Ohio cases in which 26(B) applications received a day or two late

were denied as untimely. Id. Shine-Johnson appealed but the Supreme Court of Ohio declined to

exercise appellate jurisdiction (Entry, State Court Record, ECF No. 45-1, Ex. 90).

There is a relevant Ohio procedural rule requiring 26(B) applications to be filed within

ninety days of the appellate judgment. That rule was enforced against Shine-Johnson and it is both

regularly enforced by the Ohio courts and an adequate an independent state ground of decision.

Landrum v. Mitchell, 625 F.3d 905 (6th Cir. 2010); Parker v. Bagley, 543 F.3d 859 (6th Cir.

2008)(noting that Franklin was a capital case); Scuba v Brigano, 527 F.3d 479, 488 (6th Cir.

2007)(distinguishing holding in capital cases); Monzo v. Edwards, 281 F.3d 568 (6th Cir. 2002);

Tolliver v. Sheets, 594 F.3d 900 (6th Cir. 2010), citing Rideau v. Russell, 2009 WL 2586439 (6th

Cir. 2009). Thus Shine-Johnson’s ineffective assistance of appellate counsel claim would be

procedurally defaulted unless he could show cause and prejudice to excuse the default. However,

the prison officials’ delay in mailing the application constituted good cause to excuse the default.

Dorn v. Lafler, 601 F. 3d 439 (6th Cir. 2010). Therefore this Court can reach the merits of the

Sixth Ground for Relief. We consider it de novo because there is no state court decision on the

merits to which to defer under 28 U.S.C. § 2254(d).

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285

(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of

appellate counsel, then, the court must assess the strength of the claim that counsel failed to raise.

Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707 (6th

Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective assistance only if a

reasonable probability exists that inclusion of the issue would have changed the result of the

appeal. Id., citing Wilson. The attorney need not advance every argument, regardless of merit,

urged by the appellant5. Jones v. Barnes, 463 U.S. 745, 751-752 (1983)("Experienced advocates

since time beyond memory have emphasized the importance of winnowing out weaker arguments

on appeal and focusing on one central issue if possible, or at most on a few key issues." 463 U.S.

751-52). Effective appellate advocacy is rarely characterized by presenting every non-frivolous

argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003). Williams v.

Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005); see Smith v. Murray,

477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than those presented will the

presumption of effective assistance of [appellate] counsel be overcome.” Dufresne v. Palmer, 876

F.3d 248 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th Cir. 2008).

However, failure to raise an issue can amount to ineffective assistance. McFarland v. Yukins, 356

F.3d 688 (6th Cir. 2004), citing Joshua v. Dewitt, 341 F.3d 430, 441 (6th Cir. 2003); Lucas v.

O’Dea, 179 F.3d 412, 419 (6th Cir. 1999); and Mapes v. Coyle, 171 F.3d 408, 427-29 (6th Cir.

1999). Counsel can be ineffective by failing to raise a “dead-bang winner,” defined as an issue

which is obvious from the trial record and which would have resulted in a reversal on appeal, even

if counsel raised other strong but unsuccessful claims. Mapes, supra, citing Banks v. Reynolds, 54

F. 3d 1508, 1515 n. 13 (10th Cir. 1995); see also Page v. United States, 884 F. 2d 300, 302 (7th Cir.

1989). Stated differently, failure to raise a significant and obvious claim can amount to reversible

error. Mapes v. Tate, 388 F.3d 187, 192 (6th Cir. 2004).

Shine-Johnson bases his claim that his trial attorney provided ineffective assistance of trial

5 At several points in his Traverse Shine-Johnson asserts the duty of an attorney as agent to follow the directions of

the client, his principal. But the test for ineffective assistance of appellate counsel is not limited by agency law. The

question is not whether the attorney followed orders, but whether in doing so he omitted a winning assignment of

error.

counsel on California v. Trombetta, 467 U.S. 479 (1984). In that case the Supreme Court held that

whatever duty the Constitution imposes on the States to preserve evidence, that duty must be

limited to evidence that might be expected to play a significant role in the suspect's defense. To

meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110,

evidence must both possess an exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means.

The twenty gauge shotgun with which the decedent is claimed to have threatened Petitioner

did not have a firing pin at the time of trial6 and had been disassembled after it was taken into

police custody. Petitioner’s theory seems to be that the police deliberately removed the firing pin

and destroyed it so as to undermine Petitioner’s claim that he feared for his life with the shotgun

in his father’s hands.

Even in his Application to Reopen, Shine-Johnson claimed only that the Columbus Police

failure to preserve the shotgun in the exact same condition as it was received was negligent

(Application, State Court Record, ECF No. 45-1, PageID 4122). He did not claim, and could not

plausibly claim, that its exculpatory value was evident. He summarizes the testimony of several

police witnesses who came in contact with the shotgun. Id. at PageID 4124-25. He then

summarizes his ineffective assistance of appellate counsel claim:

The Trombetta claim is stronger than the claims on my appeal

because the 20 gauge Shotgun is materially exculpatory and my only

fair chance at an acquittal. My entire Self-defense claim rest[s] on

being able to prove Joe Bythewood possessed and brandished this

weapon against me. The possibility of a different outcome exist[s]

had this exculpatory evidence been preserved in its original

condition as found by Police.

6 As Respondent points out, this firearm was not destroyed, but was produced by the State at trial.

Id.. at PageID 4163. The record does not contain evidence that a Trombetta claim in the trial court

would have been successful. There is no proof of police bad faith and indeed no proof the firing

pin was in the shotgun at the time of the incident. Far more important than the presence of a firing

pin would have been Petitioner’s reasonable belief that the weapon was operable. Given that the

shotgun was preserved for trial and available for the jury to see, it was in a position to credit or

discredit Petitioner’s fear. Because a Trombetta claim would likely have been unsuccessful in the

trial court and there is insufficient evidence in the record to support such a claim on direct appeal,

it was not ineffective assistance of appellate counsel to fail to raise this claim of ineffective

assistance of trial counsel. Other assignments of error actually raised on direct appeal and whose

merit Petitioner continues to assert at length in this habeas corpus proceeding completely belie his

claim in his Application to Reopen that his Trombetta claim was his best hope of victory. Staring

down the barrel of the twenty gauge, Petitioner was no better placed to see the firing pin than

anyone would be in that position.

Ground Six is without merit and should be dismissed.

Ground Seven: Mandatory Retroactive Application of a Change in the Burden of Proof on

Self-Defense

In his Seventh Ground for Relief, Petitioner asserts that a change in the statutory burden of

proof for self-defense must be applied retroactively to his case.

At the time of Shine-Johnson’s trial, self-defense was an affirmative defense under Ohio

law with the defendant having the burden of going forward and of persuasion by a preponderance

of the evidence as provided in Ohio Revised Code § 2901.05(A). Shine-Johnson I, ¶ 61.

According to the Petition, that statute was amended by H.B. 228, effective March 28, 2019, to

change the burden of proof (ECF No. 3, PageID 76).

Shine-Johnson asserts he did not raise his retroactivity claim on direct appeal because his

appeal had become final before H.B. 228 was adopted. Id. He did, however, file a motion to vacate

void conviction under Ohio Revised Code § 2953.21which he says raised this claim. (Am. State

Court Record, ECF No. 45-1, Ex. 94). The Franklin County Court of Common Pleas decided the

claim on the merits. It found that September 10, 2015, was the date of the offense and the

defendant’s date of conviction was February 24, 2017 (Entry, State Court Record ECF No. 45-1,

PageID 4331). H.B. 228 was passed after that and not made retroactive. Id.

On appeal the Tenth District did not reach the merits, but found the trial court lacked

jurisdiction because the petition was untimely. Shine-Johnson II. The Supreme Court of Ohio

declined to accept appellate jurisdiction. State v. Shine-Johnson, 160 Ohio St. 3d 1498 (2020).

The Magistrate Judge agrees with Petitioner that he has exhausted all state court remedies available

to him on this claim. Although Respondent asserts the claim is procedurally defaulted, he does

not suggest it is not exhausted. Because the claim did not become available until March 28, 2019,

it does not appear Petitioner could have raised it in a timely petition for post-conviction relief; the

time for filing such a petition expired before H.B. 228 was enacted. This Court may therefore

consider the Seventh Ground for Relief on the merits.

Shine-Johnson does not rely on any evidence that the Ohio General Assembly intended for

H.B. 228 to be applied retroactively. Under Ohio law, “A statute is presumed to be prospective in

its operation unless expressly made retrospective.” Ohio Rev. Code § 1.48. H.B. 228 was not

made expressly retrospective and Shine-Johnson cites no Ohio case law finding the presumption

of prospective operation has been overcome.

Instead of relying on any Ohio law, Shine-Johnson relies directly on the Fourteenth

Amendment, arguing “the State must apply the law retroactively as a matter of federal due process

where the law changed while he was under direct review and the petitioner objected to

misstatements of the burden of proof on self-defense (Traverse, ECF No. 81, PageID 6280).

As authority to support this proposition, Shine-Johnson relies on Schriro v. Summerlin, 542

U.S. 348 (2004), but that case does not support the proposition for which it is cited. In Ring v

Arizona, 536 U.S. 584 (2002), the Supreme Court had held that an aggravating factor necessary to

make a defendant death-eligible had to be found by a jury, applying to this situation its prior

decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), that all elements of a crime must be

proven to the finder of fact by proof beyond a reasonable doubt. The Ninth Circuit Court of

Appeals then applied Ring retroactively to invalidate a death sentence pronounced before Ring was

decided because Ring announced a procedural new rule rather than a substantive one. Importantly,

Schriro is about retroactive application of new Supreme Court constitutional rulings and says

nothing about retroactive application of new state statutes. United States v. United States Coin &

Currencv. 401 U.S. 715 (1971), also relied on by Petitioner, is also about retroactive application

of a decision of the Supreme Court itself, not any statute.

Shine-Johnson next argues that H.B. 228 has made the absence of self-defense an element

of murder by requiring that it be proved beyond a reasonable doubt. If absence of self-defense

were indeed made an element of murder, then the State would have to prove its absence beyond a

reasonable doubt. But that is not what H.B. 228 does. Instead it provides that

If, at the trial of a person who is accused of an offense that involved

the person’s use of force against another, there is evidence presented

that tends to support that the accused person used the force in self-

defense, defense of another, or defense of that person’s residence,

the prosecution must prove beyond a reasonable doubt that the

accused person did not use the force in self-defense, defense of

another, or defense of that person’s residence, as the case may be.

Ohio Revised Code § 2901.05. In other words, the State only has to prove the absence of self-

defense if the evidence raises that issue. Obviously there are many cases of murder where no

evidence of self-defense is presented. And the fact that the legislature requires a fact to be proved

beyond a reasonable doubt does not make that fact an element of the crime. The General Assembly

is free to require a higher degree of proof of a fact if it sees fit to do so as a matter of public policy.

Petitioner next argues how the Second Amendment’s right to keep and bear arms shows

there is a constitutional right to the defense of self-defense (Traverse, ECF No. 81, PageID 6285-

86). Within the last year, the Sixth Circuit has held that the Supreme Court has never held that the

right to present a defense squarely establishes a constitutional right to present a defense of self-

defense. Keahey v. Marquis, 978 F.3d 474, 478 (6th Cir. 2020), citing Knowles v. Mirzayance,

556 U.S. 111, 122 (2009).

Quoting the Report of the Technical Committee on the proposed new Ohio criminal code

in 1971, Shine-Johnson argues that even under the pre-H.B.228 statute, all he had to do was raise

a reasonable doubt:

The plain import of this language is that when the burden of going

forward with the evidence of an affirmative defense is placed upon

the defendant, it is intended that the defendant need only raise a

reasonable doubt of his guilt in order to gain acquittal, and need not

prove the defense by a preponderance of the evidence, or any other

standard.

Whatever the Technical Committee may have thought was appropriate fifty years ago, the new

criminal code that became effective January 1, 1974, placed the burden of going forward with

evidence of self-defense and the burden of persuasion by a preponderance of the evidence on the

defendant and the Supreme Court of the United States expressly upheld that arrangement. Martin

v. Ohio, 480 U.S. 228 (1987). Shine-Johnson cites Martin but says it does not decide the question

whether Ohio law as it existed before H.B. 228 was constitutional (Traverse, ECF No. 81, PageID

6292). On the contrary, it does precisely that.

Shine-Johnson concludes this section of his Traverse by claiming H.B. 228 embodies the

“modern” understanding of self-defense and “[T]he Burden of proof never the less [sic] is

interpreting a constitutional dimension. Therefore this raise[s] federal due process where the

petitioner cannot be convicted of a lawful act.” (ECF No. 81, PageID 6289). Federal habeas

corpus courts do not decide cases by adverting to “constitutional dimensions.” Further, we can

grant habeas relief only the petitioner shows his conviction violates the Constitution in a way

specified in a holding of the United States Supreme Court. Petitioner has cited no case in which

the Supreme Court has held a state statute liberalizing the burden of proof on an affirmative defense

must be applied retroactively.

Shine-Johnson argues that “[u]nder federal law the amendments R.C. 2901.05 would only

be prohibited from being applied retroactively if the new amendment harmed the defendants vested

rights.” (Traverse, ECF No. 81, PageID 6297). The Magistrate Judge agrees, but the legislature

did not act to make the amendments retroactive. Had it done so, Petitioner and the perhaps

hundreds of persons serving long sentences who claimed self-defense but were not believed would

be entitled to new trials under the new burden of proof. But the General Assembly did not do that,

perhaps because hundreds of new trials would be required. Undoubtedly the General Assembly

wanted to bring the self-defense statute more in line with its own views of good public policy, but

that does not mean it wanted to make the “modernization,” as Shine-Johnson calls it, apply to

convictions which had already happened.

Shine-Johnson seeks to narrow the impact of his argument by claiming the new law became

effective before his conviction became final. H.B. 228 became effective March 28, 2019. The

conviction became final on direct appeal when Supreme Court of Ohio declined to exercise

appellate jurisdiction on May 8, 2019, forty days later (Entry, State Court Record, ECF No. 45,

Ex. 73). But Shine-Johnson did not attempt to put this issue before the Supreme Court of Ohio

before his case became final. When Shine-Johnson sought to file a delayed appeal pro se on June

13, 2019, he made no mention of this change in the law which he now claims invalidates his

conviction. (Notice of Appeal, State Court Record, ECF No. 45, Ex. 74) or in his later Motion for

Reconsideration. Id. at Ex. 77). Indeed, he never raised this claim of retroactivity until he filed his

untimely Petition for Post-Conviction Relief filed April 29, 2019, thirteen months after H.B. 228

became effective. Id. at Ex. 94. If the fact that his conviction was not final when H.B. 228 became

effective has any legal significance (which Shine-Johnson has not explained), why did he wait

thirteen months to present the argument to the Ohio courts?

Petitioner concludes his argument on Ground Seven:

Habeas relief Should [sic] be granted because there was an

unquestionable and egregious violation in this case because Federal

Due Process requires relief when Redefining [sic] the burden of

proof placed upon a defendant, whether it be by a new constitutional

rule or by a new statutory interpretation of constitutional dimension,

has a substantial impact upon a criminal trial's truth-finding

function. In such situations retroactive application is imperative.

Hankerson, supra, at 432 U.S. at 241, 97 S. Ct. 2339, 53 L. Ed. 2d

306 [1977], quoting Ivan V. v. City of New York, 407 U.S. 203. 204-

05. 92 S. Ct. 1951. 1952. 32 L Ed. 2d 659. 661 (1972).

(Traverse, ECF No. 81, PageID 6301). In Hankerson, the Supreme Court decided that its own

prior constitutional decision in Mullaney v. Wilbur, 421 U.S. 684 (1975), was to be applied

retroactively. Hankerson and Mullaney were handed down many years before the Supreme Court

rationalized its doctrine on the retroactivity of its constitutional decisions in Teague v. Lane, 489

U.S. 288 (1989), and their current force in light of Teague is questionable. But much more

importantly they are about the retroactive application of Supreme Court decisions, not new state

statutes.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with

this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and

that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should

not be permitted to proceed in forma pauperis.

March 29, 2021.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such

objections shall specify the portions of the Report objected to and shall be accompanied by a

memorandum of law in support of the objections. A party may respond to another party’s

objections within fourteen days after being served with a copy thereof. Failure to make

objections in accordance with this procedure may forfeit rights on appeal.

NOTICE REGARDING RECORD CITATIONS

As noted above, Petitioner’s Traverse is more than two hundred pages long. It contains

literally hundreds of citations to the record in this case, none of which comply with S. D. Ohio

Civ. R. 7.2(b)(5) which provides:

(5) Pinpoint Citations. Except for Social Security cases, which

must comply with S.D. Ohio Civ. R. 8.1(d), all filings in this Court

that reference a prior filing must provide pinpoint citations to the

PageID number in the prior filing being referenced, along with a

brief title and the docket number (ECF No. ___ or Doc. No. ___) of

the document referenced.

Petitioner is strongly cautioned that his Objections, if he files any, MUST comply with this Rule.

Petitioner has been furnished by the State with a copy of the State Court Record which includes

the information necessary to comply with this Rule and thus has no excuse for non-compliance.

Objections which do not comply (i.e. which do not give the docket number and PageID number)

will be stricken.