The opinion
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. :
OPINION AND ORDER
This habeas corpus case, brought pro se by Petitioner Joseph-Shine Johnson, is before the
Court on Petitioner’s Objections (“Objections,” ECF No. 128) to the Magistrate Judge’s
Supplemental Report and Recommendations (Supp. Report, ECF No. 127) recommending denial
of Petitioner’s Motions for Reconsideration (ECF Nos. 123, 125).
Filed post-judgment, the Motions for Reconsideration required a recommended disposition
from the Magistrate Judge. A litigant who receives an adverse recommendation on a dispositive
matter such as a motion under Fed.R.Civ.P. 59(e) is entitled to de novo determination of any
portion of the recommendation to which substantial objection is made. This Opinion embodies the
results of the Court’s de novo review.
Joseph Shine-Johnson filed his Petition for Writ of Habeas Corpus in this case April 14,
2020 (ECF No. 3). The Court entered judgment dismissing the Petition with prejudice July 6,
2021 (ECF Nos. 96, 97). The Sixth Circuit Court of Appeals denied a certificate of appealability
June 27, 2022 (ECF No. 107). The Supreme Court of the United States denied certiorari review
February 21, 2023 (ECF No. 119).
Immediately after judgment, Petitioner filed a Motion to Amend the Judgment under
Fed.R.Civ.P. 59(e)(ECF No. 98). After that Motion was unsuccessful, Petitioner filed a Motion
for Relief from Judgment under Fed.R.Civ.P. 60(b)(ECF No. 110). The Court denied that Motion
on May 22, 2023 (ECF No. 122) and Shine-Johnson has not appealed. Instead, he has filed two
Motions for Reconsideration and one set of Objections (ECF Nos. 123, 125, 128).
This case has been marked by frequent requests that the Court reconsider decisions already
made. The Court understands that it is Petitioner’s liberty which is at stake and he cannot be
faulted for his fervor in seeking relief, but courts disfavor motions for reconsideration because they
consume a court’s scarce time for attention to a matter that has already been decided. They are
subject to limitations based on that disfavor.
As a general principle, motions for reconsideration are looked upon
with disfavor unless the moving party demonstrates: (1) a manifest
error of law; (2) newly discovered evidence which was not available
previously to the parties; or (3) intervening authority. Harsco Corp.
v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert. denied, 476
U.S. 1171, 90 L. Ed. 2d 982 (1986).
Meekison v. Ohio Dep't of Rehabilitation & Correction, 181 F.R.D. 571, 572 (S.D. Ohio
1998)(Marbley, J.).
In his current Objections, Shine-Johnson argues that because the Magistrate Judge
withdrew a recommendation to find the Rule 60(b) motion was untimely, all of the Magistrate
Judge’s prior decisions in the case should be re-examined (ECF No. 128, PageID 7749-51). The
Court declines to re-examine those prior decisions.
Shine-Johnson has now clarified that claims one through four of his Motion for Relief from
Judgment are made under Fed.R.Civ.P. 60(b)(1) and his fifth claim is made under Fed.R.Civ.P.
60(b)(6)(ECF No. 128, PageID 7752).
Petitioner objects to the Magistrate Judge’s conclusion that the Sixth Circuit’s denial of a
certificate of appealability precludes consideration of the merits of the 60l(b) motion (ECF No.
128, PageID 7753). His claim is that both this Court and the Sixth Circuit were wrong on the
certificate of appealability issue because
The Sixth Circuit[‘]s denial of a COA in this case created a conflict
within the Sixth Circuit amongst the Ohio and Michigan courts. The
Sixth Circuit also creates a conflict amongst the Fifth, Seventh,
Eighth, Ninth Circuit court of appeals. Several petitioners within the
Michigan district courts were granted a COA based on a reasonable
jurist dissenting during various stages of direct appeal and
discretionary appeal.
Id. The Court cannot evaluate this argument because Petitioner has given no citations to the cases
that supposedly embody these conflicts. Petitioner also relies on dissenting opinions in the Ohio
Court of Appeals and the Supreme Court of Ohio in his case. But the question on certificate of
appealability is not whether some judge believed a petitioner was entitled to relief, but whether a
reasonable jurist would disagree with federal district court’s disposition of the habeas corpus case,
which is a different legal question altogether. In any event, if the Sixth Circuit is wrong on this
question, their decision is still binding on this Court.
Petitioner argues that treating the circuit court’s denial of a certificate of appealability as
conclusive would eliminate the function of Rule 60(b). Not so. It is entirely possible that a litigant
will present claims in a 60(b) motion on which he or she did not even seek a certificate of
appealability. Conversely, treating a circuit court’s COA decision as conclusive on the issues
actually raised promotes finality, a key aim of the Antiterrorism and Effective Death Penalty Act
of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"). “AEDPA aim[s] to prevent serial
challenges to a judgment of conviction, in the interest of reducing delay, conserving judicial
resources, and promoting finality.” In re Hill, ___ F.4th ___, 2023 WL 5493261 at 9 (6th Cir. Aug.
25, 2023), quoting Banister v. Davis, 140 S. Ct. 1698 at 1707 (2020).
Petitioner next objects to the Magistrate Judge’s conclusion that he was not entitled to
discovery of transcripts of the voir dire examination (ECF No. 128, PageID 7758-60). Petitioner
references the Supp. Report, ECF No. 127, at PageID 7745-46, but there is no ruling on voir
transcripts at that place. The Magistrate Judge declined to order voir dire transcribed and added
to the record on February 16, 2021 (ECF No. 64). Petitioner made no objection at the time and
his instant objection is therefore untimely.
Shine-Johnson objects to the Magistrate Judge’s conclusion, relied on by the Sixth Circuit
in denying a certificate of appealability, that he had not shown actual innocence so as to excuse
his procedural defaults when the evidence he presented was an Affidavit attesting to the bad
character of the decedent in this murder case, Petitioner’s father. However, new evidence of the
bad character of a victim is not the type of evidence of actual innocence required by Schlup v.
Delo, 513 U.S. 298, 319 (1995). A court only engages in the weighing of new versus old evidence
in actual innocence claims if the new evidence first qualifies under Schlup, so Petitioner’s
objection to the lack of such a weighing process is misplaced.
Petitioner next turns to his claim that character and prior bad acts evidence were improperly
admitted against him (Objections, ECF No. 128, PageID 7784-90). “There is no clearly
established Supreme Court precedent which holds that a state violates due process by permitting
propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512
(6th Cir. 2003), noting that the Supreme Court refused to reach the issue in Estelle v. McGuire. 502
U.S. 62 (1991).
Shine-Johnson objects that the Magistrate Judge improperly found he had procedurally
defaulted Grounds One through Four because Respondent, he asserts, had waived that defense
(Objections, ECF No. 128, PageID 7791-94). The Magistrate Judge concluded this was one of the
issues on which the Sixth Circuit had decided Shine-Johnson was not entitled to a certificate of
appealability (ECF No. 127). The Court agrees that its prior rulings on that issue should not be
reconsidered.
Beginning at PageID 7819 under the heading “Application to Reopen,” Shine-Johnson
revisits his arguments about the chain of custody of his father’s shotgun. Here again he asks for
extensive reconsideration of prior decisions in that he claims the Magistrate Judge improperly
relied on law of the case arguments in finding the Sixth Circuit’s COA ruling conclusive on the
claims it considered and “[t]he district court in adjudicating this claim held the petitioner to unduly
burdensome standard of proof on the prejudice prong of Strickland. The Sixth circuit court of
appeals actions was [sic] inconsistent with due process.” PageID 7819. For the reasons given above,
the Magistrate Judge’s use of the Sixth Circuit’s COA decision is not an error of law. The Court declines
to reconsider at this time its application of Strickland. And this Court is without authority to hold the Sixth
Circuit decision violates due process.
Shine-Johnson next argues the Court has misapplied 28 U.S.C. § 2254(d)(1), (d)(2), and
(e)(1), asserting this is a case where the Court can overlook procedural defaults (Objections ECF
No. 128, PageID 7833-54). In this section he argues again his claim that the Ohio courts were in
error in their interpretation of the Ohio law of self-defense. This Court is, however, bound by state
court holdings on state law questions. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting
Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly held that a state court’s
interpretation of state law, including one announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir.
2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-
36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). Shine-Johnson’s argument
that the Tenth District engaged in a subterfuge to avoid a federal question is completely
unpersuasive.
Shine-Johnson filed his Motion for Relief from Judgment on September 30, 2022 (ECF
No. 110). On January 27, 2023, he sought leave to amend that Motion by adding a claim under
State v. Leyh, 166 Ohio St.3d 365 (2022)(ECF No. 117). The Magistrate Judge denied the Motion
to Amend on grounds it was untimely because it was filed four months after Petitioner’s Motion
for Relief from Judgment, which the Magistrate Judge had already found to be itself untimely.
The Magistrate Judge has now withdrawn his timeliness conclusion about the underlying
60(b) motion. Shine-Johnson argued the one-year time limit under Fed.R.Civ.P. 60(c) should run
from November 17, 2021, the date on which the Court denied Petitioner’s Motion to Amend the
Judgment under Fed.R.Civ.P. 59(e). In the Supp. Report, the Magistrate Judge accepted that date.
However, that would mean the one year under Rule 60(c) expired November 17, 2022. Because
Petitioner’s Motion to Supplement was not filed until January 27, 2023, it is still untimely if
Petitioner’s Motion for Relief is properly adjudicated under Fed.R.Civ.P. 60(b)(1). The Supp.
Report reiterates this conclusion (ECF No. 127 at PageID 7743).
In his Objections, Shine-Johnson disclaims any reliance on 60(b)(1) for his Leyh argument
and asserts it is made under Fed.R.Civ.P. 60(b)(6)(ECF No. 128, PageID 7854). Motions under
60(b)(6) are not subject to a strict one-year time limit, but instead must be brought within a
“reasonable” time which, according to the circumstances, could be more or less than a year. Fed.
R. Civ. P. 60(c)(1); Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). Judgment was entered
in this case November 17, 20211. Leyh was decided February 8, 2022. Thus it was available to
Shine-Johnson when he filed his Motion for Relief from Judgment on September 30, 2022, but he
did not include his Leyh claim or bring it to this Court’s attention until four months later when he
filed his Motion to Supplement. His excuse is simply that he did not know about Leyh. Given the
very large volume of Petitioner’s filings in this case and their citation of myriad precedents, the
Court finds this claim unpersuasive. Nevertheless because Petitioner is not entitled to relief on the
merits of his 60(b)(6) Leyh claim, the Court will make no ruling on the timeliness of the Motion
to Supplement, but proceed to consider the merits.
Relief should be granted under Rule 60(b)(6) only in unusual circumstances where
principles of equity mandate relief, Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir.
1990), and the district court’s discretion under 60(b)(6) is particularly broad. Johnson v. Dellatifa,
357 F.3d 539 (6th Cir. 2004); McDowell v. Dynamics Corp., 931 F.2d 380, 383 (6th Cir. 1991);
Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). Judge Watson of
this Court recently wrote in a capital case:
Rule 60(b)(6) is a "catchall" provision that "vests courts with a
deep reservoir of equitable power to vacate judgments 'to achieve
substantial justice' in the most 'unusual and extreme situations."'
Zagorski v. Mays, 907 F.3d 901, 904 (6th Cir. 2018) (quoting Stokes
v. Williams, 475 F.3d 732, 735 (6th Cir. 2007)). The Sixth Circuit
has made clear that Rule 60(b)(6) "applies only in exceptional or
extraordinary circumstances where principles of equity mandate
relief." West v. Carpenter, 790 F .3d 693, 696-97 (6th Cir. 2015)
(citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d
741,750 (6th Cir. 2013)). In other words, Rule 60(b)(6) is to be used
rarely-especially in habeas corpus. See Gonzalez v. Crosby, 545 U.S.
524, 535 (2005).
Hand v. Houk, 2020 U.S. Dist. LEXIS 41511 *3 (S.D. Ohio Mar. 10, 2020)(Watson, J.).
1 In the sense that, with denial of Petitiomner’s Rule 59(e) motion on tht date, the underlying July 6, 2021, judgment
became appealable.
A change in decisional law is usually not, by itself, an extraordinary circumstance.
Landrum v. Anderson, 813 F.3d 330 (6th Cir. 2016); Wright v. Warden, 793 F.3d 670 (6th Cir.
2015); Henness v. Bagley, 766 F.3d 550 (6th Cir. 2014); McGuire v. Warden, 738 F.3d 741 (6th
Cir. 2013), citing Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007); Agostini v. Felton, 521
U.S. 203, 239 (1997); Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249
F.3d 519, 524 (6th Cir. 2001).
Leyh embodies a change in the decisional law of Ohio about procedure to be followed in
deciding ineffective assistance of appellate counsel claims under Ohio R. App. P. 26(B). Petitioner
has argued that Leyh does not involve a change in the law, but only a clarification of how Rule
26(B) is to be applied. That distinction undermines his argument rather than supporting it: if a
change in decisional law will only rarely constitute an extraordinary circumstance, a clarification
of the law is even less extraordinary.
In Leyh the Supreme Court of Ohio specified the procedure to be used in deciding
ineffective assistance of appellate counsel claims in Ohio courts of appeal. If Petitioner were in a
position to file a 26(B) application today2, he would be entitled as a matter of state law to the
process prescribed by Leyh. Shine-Johnson attempts to make this into a federal claim by arguing
he had a liberty interest in having his ineffective assistance of appellate counsel claim processed
as Leyh now prescribes, but he offers no supportive authority. Certainly the Ohio Supreme Court
did not believe they were deciding a federal constitutional issue in Leyh; rather they were
prescribing a procedure by which federal claims of ineffective assistance of appellate counsel
would be processed. Shine-Johnson argues that virtually every step in the App. R. 26(B) process
creates a liberty interest because it is mandatory. No so. None of the procedures mandated by
2 26(B) applications must be filed within ninety days of the appellatejudmgnet sought to be reopened; Ohio appellants
are limited to one such application.
26(B) as interpreted in Zeyh prescribes a substantive outcome. Accepting Petitioner’s argument
would erase the distinction between procedural and substantive law altogether.
Petitioner spends space discussing why his ineffective assistance of appellate counsel
claims are not procedurally defaulted (Objections, ECF No. 128, PageID 7862-69). The
Magistrate Judge found any procedural default was excused and decided the ineffective assistance
of appellate counsel claim on the merits. Shine-Johnson claims this is inadequate. In effect he
asserts he is entitled as a matter of federal due process to have 26(B) as interpreted in Levh applied
to his case. Petitioner cites no federal case law holding that state court procedures for deciding
ineffective assistance of appellate counsel claims are constitutionally mandated.
Constitutionalizing Leyh would upset certainly hundreds and perhaps thousands of Ohio
convictions decided before Leyh. The Due process Clause does not sanction that result.
CONCLUSION
Having reviewed de novo those portions of the Magistrate Judge’s Reports and
Recommendations to which objection has been made, the Court overrules the Objections (ECF
No. 128) and denies the Motions for Reconsideration (ECF Nos. 123, 125). The Magistrate
Judge’s Reports and Recommendations (ECF Nos. 124 and 127) are ADOPTED. This case will
remain closed on the docket of this Court.
IT ISSO ORDERED.
ALGENON EL. MARB
CHIEF UNITED STATES DISTRICT JUDGE
DATED: October 30, 2023