Johnson v. Black

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CURTIS L. JOHNSON, JR., CASE NO. 1:23-CV-2368-PAB

Petitioner, JUDGE PAMELA A. BARKER

vs. MAGISTRATE JUDGE DARRELL A. CLAY

WARDEN ANGELA STUFF,1 REPORT AND RECOMMENDATION

Respondent.

INTRODUCTION

Representing himself, Petitioner Curtis Johnson, a prisoner in state custody, applied for a

writ of habeas corpus under 28 U.S.C. § 2254 on November 29, 2023. (ECF #1 at PageID 15).

The District Court has jurisdiction under § 2254(a) and the matter was referred to me to prepare a

Report and Recommendation. (Non-document entry of Dec. 21, 2023). On February 20, 2024,

then-Respondent Warden Kenneth Black, as Warden of the Richland Correctional Institution

(hereinafter, the State), filed the Return of Writ (ECF #6) with the state-court record (ECF #6-1).

On March 26, 2024, Mr. Johnson submitted his Traverse. (ECF #7).

Mr. Johnson raises four grounds for relief challenging his conviction for murder. For the

reasons below, I recommend the District Court DISMISS Grounds One and Two as procedurally

defaulted, DENY Grounds Three and Four as meritless, and DISMISS the petition. I further

1 Angela Stuff replaced Kenneth Black as Warden of the Richland Correctional

Institution. See Richland Correctional Institution, Ohio Dep’t of Rehab. & Corr.,

http://drc.ohio.gov/about/facilities/richland-correctional/ (last accessed Mar. 27, 2025). Under

Fed. R. Civ. P. 25(d), I automatically substitute Warden Stuff as the proper respondent.

recommend the District Court DENY Mr. Johnson’s requested certificate of appealability (COA)

on Ground One and DENY him a COA on all other grounds.

PROCEDURAL HISTORY

A. State court factual findings

The Ohio Court of Appeals, Eighth Appellate District, summarized the facts here on direct

appeal. These factual findings are presumed correct unless Mr. Johnson offers clear and convincing

evidence to the contrary. See 28 U.S.C. § 2254(e)(1). The Eighth District determined:

{¶1} Curtis Johnson appeals multiple convictions arising from a shooting incident

outside a local establishment in which Johnson was found guilty of murdering Catera

Fowler. For the following reasons, we affirm.

{¶2} Johnson and his codefendant Eric White attended a live musical performance

at Legacy Nightclub, located on the corner of E. 103rd Street and Union Avenue in

Cleveland, Ohio. Before the performance could begin, Johnson and White engaged

in a physical fight. Fowler was with White’s group and participated in the fisticuffs.

The club cleared the building. Johnson exited the club, walked back to his car, and

removed his sweatshirt in anticipation of the continued belligerence. Once outside,

Johnson waited for White to exit the building.

{¶3} As White exited with Fowler nearby, Johnson approached White in a manner

suggesting he intended to continue fighting. White reached for and brandished a

firearm with Fowler attempting to keep him from doing so. At that time, another

unidentified individual fired shots into the air from the corner of the street. White

and Fowler began running south down E. 103rd Street, past Johnson’s car.

{¶4} At the same time, Johnson took refuge behind his car, which was parked on E.

103rd Street, and retrieved his own firearm. Video depicts Johnson ducking behind

the car, but it is unclear whether shots were actually fired in his direction. No one

claims that any bullet defects existed in his vehicle. Johnson claims that White was

chasing and shooting at him during this time.

{¶5} Regardless, as White and Fowler ran past Johnson, heading south away from

Johnson, Johnson began firing several shots at the fleeing couple. It was only after

White and Fowler continued south that Johnson first began to fire in their direction.

Although White and Fowler were no longer within the vantage point of the video

camera, the state relied on the circumstantial evidence provided by the mechanism

of Fowler’s death. The fatal shot struck Fowler in the lower back, with evidence

demonstrating that the shot came from Johnson’s firearm. The bullet travelled

through Fowler’s body, exiting Fowler’s upper chest—meaning the bullet travelled at

an upward trajectory, having been fired from a lower vantage point.

{¶6} There were other unidentified shooters on the street, but according to the state’s

evidence, those other shooters fired their weapons indiscriminately into the air.

{¶7} White and Johnson were separately charged and proceeded to trial for the

murder of Fowler. Before Johnson’s trial, White was acquitted. Johnson’s jury trial

resulted in convictions for murder in violation of R.C. 2903.02(A), along with a

three-year firearm specification; felonious assault in violation of R.C. 2903.11(A)(2),

a qualifying felony offense, along with a three-year firearm specification; discharge of

a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3), along

with a three-year firearm specification; and having weapons while under disability in

violation of R.C. 2923.13(A)(2). The trial court imposed the underlying terms to be

served concurrently but imposed two of the firearm specifications to be served

consecutive to each other and the underlying sentences, for a stated prison term of

21 years to life imprisonment.

(ECF #6-1 at PageID 133-35 (footnotes omitted); see also State v. Johnson, No. 110673, 2022 WL

2981506, at *1 (Ohio Ct. App. July 28, 2022), appeal not allowed, 200 N.E.3d 1151 (Ohio 2023)

(table)).

B. Direct appeal

On July 17, 2021, through new counsel, Mr. Johnson timely appealed his convictions to

the Eighth District. (ECF #6-1 at PageID 78). He raised two assignments of error:

1. The trial court erred by failing to instruct the jury on self-defense where Mr.

Johnson retreated to his car while under gunfire and

2. The trial court erred in denying Mr. Johnson’s Ohio Criminal Rule 29

motion for acquittal when there was no evidence that Mr. Johnson caused

the death of the victim or caused physical harm to the victim.

(See id. at PageID 90-92) (cleaned up). A divided panel of the Eighth District affirmed Mr.

Johnson’s conviction on July 28, 2022. (See id. at PageID 143-44). The dissenting judge disagreed

on the first issue and would have concluded Ohio law entitled Mr. Johnson to a self-defense

instruction. (Id. at PageID 148).

On September 12, 2022, through new counsel, Mr. Johnson appealed to the Supreme

Court of Ohio. (See id. at PageID 150). He advanced one proposition of law:

In a criminal trial, where there is some evidence that the accused acted in self-defense,

the trial court must instruct the jury that it is the prosecution’s burden to disprove

beyond a reasonable doubt that the accused used the force in self-defense before it

may find him guilty.

(Id. at PageID 171). On January 17, 2023, the Supreme Court of Ohio declined to hear his appeal.

(Id. at PageID 188; see also Johnson, 200 N.E.3d 1151).

C. Application to reopen the direct appeal

While his application for a discretionary appeal to the Supreme Court of Ohio was

pending, on October 4, 2022, representing himself, Mr. Johnson applied to reopen his direct

appeal under Ohio Appellate Rule 26(B). (ECF #6-1 at PageID 189). There, he argued his

appellate counsel was ineffective for not raising three proposed issues on direct appeal:

1. Mr. Johnson’s Sixth Amendment right to have the jury decide the weight of

the evidence and the credibility of the witnesses regarding his self-defense

claim,

2. Trial counsel’s failure to seek a jury instruction on the lesser-included offense

of manslaughter, and

3. The trial court erroneously admitted over objection the State’s video excerpts

that labeled Mr. Johnson as the “shooter.”

(See id. at PageID 191-93, 197-98) (cleaned up). In his reply to the State’s opposition, Mr. Johnson

changed his third claim to:

With respect to the actual issue raised in Appellee’s [sic] Third Proposed Assignment

of Error, Appellant specifically argues that the State failed to place any evidence

before the jury, whether it was circumstantial or otherwise, of the required mens rea

element of intent, to support a guilty verdict for murder.

(Id. at PageID 233). Mr. Johnson continued, “To that point, Appellant asks this Court to consider

the following with respect to Proposed Assignment of Error No. III,” and argued whether an

involuntary-manslaughter instruction was appropriate. (See id. at PageID 233-34). On January 11,

2023, the Eighth District denied Mr. Johnson’s application on the merits of all three claims as

raised in the application. (Id. at PageID 237, 241-43; see also State v. Johnson, No. 110673, 2023 WL

169260 (Ohio Ct. App. Jan. 11, 2023), appeal not allowed, 208 N.E.3d 854 (Ohio 2023) (table)).

On February 24, 2023, representing himself, Mr. Johnson sought an appeal to the

Supreme Court of Ohio. (ECF #6-1 at PageID 244). His memorandum in support of jurisdiction

raised three propositions of law:

1. When appellate counsel fails to raise the complete lack of evidence of the

element of intent regarding a murder conviction, appellant is denied the

effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution

2. When appellate counsel fails to argue appellant’s right to have a jury

determine the issues regarding self-defense, appellant is denied effective

assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution, and Article I, Sections 10 and 16 of the Ohio

Constitution

3. When a jury is shown a video over the objections of trial counsel, that labels

appellant as “the shooter” and appellate counsel fails to argue the prejudicial

impact of that video on direct appeal, appellant is denied the effective

assistance of counsel in violation of the Sixth and Fourteenth Amendments

to the United States Constitution.

(See ECF #6-1 at PageID 248, 251, 253, 256). On May 9, 2023, the Supreme Court of Ohio

declined to hear his appeal. (Id. at PageID 267; see also State v. Johnson, 208 N.E.3d 854).

FEDERAL HABEAS PETITION

Before this Court, Mr. Johnson raises four grounds for relief:

1. In a criminal trial, where there is some evidence that the accused acted in self-

defense, the trial court must instruct the jury that is the prosecution’s burden

to disprove beyond a reasonable doubt that the accused used the force in self-

defense before it may find him guilty.

2. When Appellate counsel fails to raise the complete lack of evidence of the

element of intent regarding a murder conviction, appellant is denied the

effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution.

3. When appellate counsel fails to argue appellant’s right to have a jury

determine the issue regarding self-defense, appellant is denied effective

assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution and Article I, Sections 10 and 16 of the Ohio

Constitution.

4. When a jury is shown a video over the objections of trial counsel, that labelled

Appellant as “the shooter” and appellate counsel fails to argue the prejudicial

impact of that video on direct appeal, appellant is denied the effective

assistance of counsel in violation of the Sixth and Fourteenth Amendments

to the United States Constitution.

(ECF #1 at PageID 5, 7, 9, 11).

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs Mr.

Johnson’s habeas petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA recognizes that

“[s]tate courts are adequate forums for the vindication of federal rights” so AEDPA acts as a

“formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in

state court.” Burt v. Titlow, 571 U.S. 12, 19 (2013). AEDPA “dictates a highly deferential standard

for evaluating state-court rulings which demands that state-court decisions be given the benefit of

the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citation and quotation omitted). Habeas courts

review the last-explained state-court judgment on the federal claim at issue. Ylst v. Nunnemaker,

501 U.S. 797, 805 (1991).

Accordingly, habeas relief cannot be granted for a person in custody pursuant to a state

conviction unless the adjudication “(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was based upon an unreasonable

determination of the facts in light of the evidence presented in the State court proceedings.”

28 U.S.C. § 2254(d).

For the purposes of § 2254(d)(1), “clearly established Federal law” means “the governing

legal principle or principles set forth by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes “the holdings, as opposed to

dicta, of [Supreme Court] decisions.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

A state-court decision is “contrary” to Supreme Court precedent if the state court arrives at

a conclusion opposite that reached by the Supreme Court on a question of law or if the state court

decides a case differently than the Supreme Court has decided on a set of materially

indistinguishable facts. Id. at 405. The word “contrary” means “diametrically different, opposite in

character or nature, or mutually opposed.” Id. A state court does not act contrary to Supreme

Court precedent when the precedent of the Supreme Court is ambiguous or nonexistent. See

Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).

A state-court decision involves an “unreasonable application” of Supreme Court precedent

if (1) the state court identifies the correct governing legal rule from the Supreme Court’s cases but

unreasonably applies it to the facts of the state prisoner’s case or (2) the state court either

unreasonably extends a legal principle from the Supreme Court’s precedent to a new context

where it should not be applied or unreasonably refuses to extend that principle in a new context

where it should apply. Williams, 529 U.S. at 407. A state-court decision must be “objectively

unreasonable” to have unreasonably applied Supreme Court precedent which requires more than

the decision being “erroneous” or “incorrect.” See id. at 409-11. “It bears repeating that even a

strong case for relief does not mean the state court’s contrary conclusion was unreasonable.”

Harrington v. Richter, 562 U.S. 86, 102 (2011).

Under § 2254(d)(2), a state court’s factual determinations stand unless they too are

objectively unreasonable in light of the evidence presented in state court. See Harrington, 562 U.S.

at 100. The Supreme Court has repeatedly emphasized “a state court factual determination is not

unreasonable merely because the federal habeas court would have reached a different conclusion.”

Burt, 571 U.S. at 18. Under AEDPA, “a determination of a factual issue made by a state court shall

be presumed to be correct” unless the petitioner offers clear and convincing evidence to the

contrary. See 28 U.S.C. § 2554(e)(1).

Comity principles also require federal courts to defer to a state court’s judgment on issues

of state substantive and procedural law. Murray v. Carrier, 477 U.S. 478, 491 (1986); Engle v. Isaac,

456 U.S. 107, 128-29 (1982). Federal courts must accept a state court’s interpretation of its statutes

and rules of practice. Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986).

The standard is intended to be difficult to meet and reflects the view that habeas corpus is

a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for

ordinary error correction through appeal. Harrington, 562 U.S. at 102-03; see also Brown v.

Davenport, 596 U.S. 118, 133 (2022) (describing habeas as an “extraordinary remedy, reserved for

only extreme malfunctions in the state criminal justice system and different in kind from providing

relief on direct appeal”) (cleaned up). To obtain “habeas corpus from a federal court, a state

prisoner must show that the state court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fair-minded disagreement.” Harrington, 562 U.S. at 103.

PROCEDURAL BARRIERS TO FEDERAL HABEAS REVIEW

Before a federal court may review a petitioner’s habeas claims on the merits, the petitioner

must overcome several procedural barriers. These barriers, including exhaustion of state remedies

and procedural default, limit a petitioner’s access to review on the merits of a constitutional claim.

Daniels v. United States, 532 U.S. 374, 381 (2001). Put simply, federal habeas review is limited to

federal claims that a state court decided on the merits. Claims there were not evaluated on the

merits, either because they were never presented to the state courts (i.e., they are unexhausted) or

because they were not properly presented to the state courts (i.e., they are procedurally defaulted),

are generally not reviewable by a federal habeas court. See Bonnell v. Mitchel, 301 F.Supp.2d 698,

722 (N.D. Ohio Feb. 4, 2004).

State-law Claims Not Cognizable on Federal Habeas Review. Federal habeas review is

available only for claims that “challenge the legality of [the petitioner’s] custody” based on a

“violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2254(a). Put

another way, “[t]he writ of habeas corpus is not available to remedy errors of only state law.” Smith

v. Morgan, 371 F.App’x 575, 582 (6th Cir. 2010); see also Norris v. Schotten, 146 F.3d 314, 328 (6th

Cir. 1998) (“A claim based solely on an error of state law is not redressable through the federal

habeas process.”); see also Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“The Due Process Clause . . .

safeguards not the meticulous observance of state procedural prescriptions, but the fundamental

elements of fairness in a criminal trial.”) (quotation omitted); Engle, 456 U.S. at 121 n.21 (“We

have long recognized that a ‘mere error of state law’ is not a denial of due process.”) (citation

omitted).

Federal habeas review is generally not available to decide whether a state court complied

with state law or state procedural requirements. Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987).

A federal habeas court “does not function as another state appellate court to review a state court’s

interpretation of its own law or procedure.” Id. Instead, a federal habeas court is bound by “[a]

state court’s interpretation of state law, including one announced on direct appeal of the

challenged conviction.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

A petitioner cannot justify habeas relief by simply asserting that a state-law error violates

the federal constitution. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010). But habeas relief may be

available if an error of state law made the criminal process “fundamentally unfair.” Williams,

460 F.3d at 816. “[T]he category of infractions that violate fundamental fairness is defined very

narrowly,” and includes only state rulings that “offend some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental.” Bey v. Bagley, 500 F.3d

514, 521 (6th Cir. 2007) (cleaned up). The habeas petitioner must show “the principle of

procedure violated by the rule (and allegedly required by due process)” is fundamental. Id.

Procedural Default. A federal habeas court may not review claims that have been

procedurally defaulted under state law. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). There

are two avenues by which a petitioner may procedurally default a claim. Williams, 460 F.3d at 806.

One way a procedural default occurs is if a petitioner “fails to comply with state procedural rules in

presenting his claim to the appropriate state court.” Id. To determine whether that failure bars

review of a habeas claim, courts in the Sixth Circuit ask four questions: (1) whether there is a state

procedural rule applicable to petitioner’s claim and whether petitioner failed to meet that rule;

(2) whether the state court enforced the procedural rule; (3) whether the procedural rule is an

adequate and independent state ground on which the state can bar review of the federal

constitutional claim; and (4) whether the petitioner can show cause for his failure to follow the

rule and that he was actually prejudiced by the alleged constitutional error. Maupin v. Smith,

785 F.2d 135, 138 (6th Cir. 1986).

The other way a claim can be procedurally defaulted is if a petitioner does not raise it in

state court and pursue it through the state’s “ordinary appellate review procedures.” Williams,

460 F.3d at 806 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)). To have a habeas claim

considered on the merits, a petitioner must present that federal claim at “each and every level” of

the state courts. See Baston v. Bagley, 282 F.Supp.2d 655, 661 (N.D. Ohio 2003). If a petitioner did

not first raise his federal habeas claim before the state courts and state law would no longer allow

the petitioner to raise the claim in state court, the claim is procedurally defaulted. Williams,

460 F.3d at 806.

Excusing a Procedural Default. A procedural default is not the end of a habeas claim. A

petitioner can overcome a procedural bar by showing either (1) cause for the default and actual

prejudice because of the alleged violation of federal law or (2) not considering the claims will result

in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 749. Success here does not entitle

a petitioner to habeas relief; it only allows a federal court to consider the merits of a claim (subject

to the standard of review above) when the claim would otherwise be procedurally defaulted. See

Martinez v. Ryan, 566 U.S. 1, 10 (2012); see also Coleman, 501 U.S. at 750.

Habeas petitioners cannot rely on conclusory assertions of cause and prejudice to overcome

procedural default. Rather, “the existence of cause for a procedural default must ordinarily turn on

whether the prisoner can show that some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.” Murray, 477 U.S. at 488; see also

Wogenstahl v. Mitchell, 668 F.3d 307, 321 (6th Cir. 2012). Neither a petitioner’s pro se status nor

any ignorance of the law and procedural filing requirements are enough to show cause to

overcome procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004).

To demonstrate prejudice sufficient to overcome procedural default, a petitioner must

show more than mere errors in the state trial creating a possibility of prejudice. Murray, 477 U.S. at

494. Rather, the petitioner must show the alleged errors worked to the petitioner’s actual and

substantial disadvantage, infecting the entire trial with error of constitutional dimensions. Id.

There is no prejudice where the petitioner does not show a reasonable probability that the result of

the proceeding would have been different. Ambrose v. Booker, 801 F.3d 567, 577-78 (6th Cir. 2015).

Alternatively, a petitioner may overcome procedural default by showing that a fundamental

miscarriage of justice will occur if the claims are not considered. Coleman, 501 U.S. at 750. A

fundamental miscarriage of justice occurs in the “extraordinary case, where a constitutional

violation has probably resulted in the conviction of one who is actually innocent.” Murray,

477 U.S. at 495-96. Actual innocence means “factual innocence, not mere legal insufficiency.”

Bousley v. United States, 523 U.S. 614, 623 (1998). A valid actual innocence claim must be

supported by new, reliable evidence that was not presented at trial and is “so strong a court cannot

have confidence in the outcome of the petitioner’s trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

Such evidence can include exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence. Id. But this evidence “must show that it is more likely than not that no

reasonable juror would have convicted him in light of the new evidence.” Id. at 327.

ANALYSIS

A. Procedural default of Grounds One and Two.

1. Mr. Johnson procedurally defaulted Ground One by raising it in state court as a

state statutory claim, not as a Sixth Amendment claim.

The State argues Mr. Johnson procedurally defaulted Ground One because he did not

present Ground One as a federal claim to the state courts, rather he presented solely a claim of

state law. (ECF #6-1 at PageID 45-46). I agree that this claim is defaulted.

As mentioned above, federal habeas review is limited to federal claims decided on the

merits by a state court. This requires a petitioner to present to both the state and federal courts

“the same claim under the same theory.” Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009). And

the petitioner must make the state courts aware of the “federal nature of the claim.” Baldwin v.

Reese, 541 U.S. 27, 29 (2004).

The substance of Ground One is that the trial court’s decision not to instruct the jury on

self-defense violated Mr. Johnson’s Sixth Amendment right to a fair trial and his Fourteenth

Amendment right to due process of law because he presented enough evidence to be entitled to

that instruction. (See ECF #1 at PageID 5; ECF #7 at PageID 288-89). While Mr. Johnson

presented this claim to the state courts under Ohio law, he did not make the state courts aware of

any federal constitutional aspect of this argument.

Starting in his direct appeal to the Eighth District, Mr. Johnson did not mention either the

Sixth or Fourteenth Amendments, argue either Amendment entitled him to a self-defense

instruction, or cite any federal law. (See ECF #6-1 at PageID 91-94). Instead, Mr. Johnson’s

argument was based on Ohio Revised Code §§ 2901.05 and 2901.09, the state’s self-defense

statutes. (See id. at PageID 97-103). At various points, Mr. Johnson revealed the state-law nature of

his argument. (See id. at PageID 97-98, 103) (“Under Ohio law, a defendant is entitled to assert self-

defense . . . This defense is statutory . . . The trial court did not follow current Ohio law on self-

defense . . . Under newly revised [Revised Code §] 2901.09 . . . Ohio law no longer requires a

person to retreat.”). Faced with a claim framed solely under Ohio law, the Eighth District confined

its analysis to Ohio law. (See id. at PageID 135-40).

Mr. Johnson kept his Ohio-law focus during his appeal to the Supreme Court of Ohio. The

federal claims do not appear in his proposition of law. (Id. at PageID 171). His argument analyzed

Revised Code § 2901.05 and the Eighth District’s interpretation of that statute. (Id. at PageID 175-

76). At no point in his direct appeal did Mr. Johnson make the state courts aware of any asserted

federal basis of this claim.

Mr. Johnson first mentions federal law in his Rule 26(B) application, but this was not

enough. There he argued his appellate counsel was ineffective for not arguing the Sixth

Amendment issue. (See id. at PageID 192-93). But whether the refusal to instruct on self-defense

violated the Sixth and Fourteenth Amendments is a different issue than whether Mr. Johnson’s

appellate counsel was ineffective for not arguing that claim on appeal. See Davie v. Mitchell, 547

F.3d 297, 312 (6th Cir. 2008) (noting ineffective assistance and the underlying claim are

“analytically distinct”). Thus, “a Rule 26(B) application based on ineffective assistance cannot

function to preserve the underlying substantive claim.” Id. Because Mr. Johnson never presented

Ground One as a federal claim in the state courts, it is procedurally defaulted. See Reese, 541 U.S.

at 29.

Mr. Johnson does not advance cause for his default in his Traverse; in fact, he does not

address the issue at all. (See ECF #7). But his arguments on the merits might support cause for

default. Because Mr. Johnson is representing himself so his pleadings are entitled to a liberal

construction, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), I address this potential

argument. If the District Court determined Ground One has merit, then Mr. Johnson’s

ineffective-assistance claim could serve as cause to excuse the default of Ground One. See Davie,

547 F.3d at 312. But if the underlying Sixth Amendment claim has no merit, there is no cause

because Mr. Johnson cannot demonstrate his counsel was ineffective for failing to raise a meritless

claim on appeal. See id.

For Ground One to have merit, Mr. Johnson must show “the trial judge not only misread

state law but also misread it so badly that it violated the Sixth and Fourteenth Amendments.”

Keahey v. Marquis, 978 F.3d 474, 478 (6th Cir. 2020). Doing so “is not easy because ‘instructional

errors of state law generally may not form the basis for federal habeas relief.’” Id. (quoting Gilmore

v. Taylor, 508 U.S. 333, 344 (1993)). Even then, he must show the trial court’s faulty interpretation

was contrary to a Supreme Court decision. See 28 U.S.C. § 2254(d)(1). To do that, Mr. Johnson

must show that the misreading of Ohio’s self-defense law violated concrete Supreme Court

holdings, not generalized principles. See Keahey, 978 F.3d at 478.

That last requirement dooms Mr. Johnson’s claim because the Sixth Circuit held in Keahey

“[n]o clearly established Supreme Court precedent gives an answer” to what specific amount of

evidence would trigger a federal constitutional right to a state-law self-defense instruction. See 978

F.3d at 479-80. As mentioned above, a state court cannot act contrary to Supreme Court

precedent when there is no precedent on the issue. See Esparza, 540 U.S. at 17 (per curiam). Mr.

Johnson cites no case—let alone a case after the Sixth Circuit’s 2020 decision in Keahey—

establishing he has a federal constitutional right to a self-defense instruction based on the body of

evidence he presented at trial. (See ECF #7 at PageID 288-91) (citing cases from 1973 through

2002). Nor can I find such a case. Because Ground One has no merit, Mr. Johnson cannot rely on

ineffective assistance of appellate counsel as cause for him not presenting it in state court.

I thus recommend the District Court DISMISS Ground One as procedurally defaulted.

2. Mr. Johnson procedurally defaulted Ground Two because he did not raise the

issue in his application for reopening before the Eighth District.

The State argues Ground Two, concerning ineffective assistance of appellate counsel, is

procedurally defaulted because at varying times in state court, Mr. Johnson presented different

reasons why his appellate counsel was ineffective. (See ECF #6 at PageID 46).

As discussed above, a petitioner must present his habeas claim at “each and every level” of

the state courts to have the claim considered on the merits. See Baston, 282 F.Supp.2d at 661. A

petitioner must give state courts a full opportunity to resolve any constitutional issues by invoking

“one complete round” of the state’s appellate review system. Caver v. Straub, 349 F.3d 340, 346

(6th Cir. 2003). And a petitioner must present “the same claim under the same theory” to the state

and federal courts at every level. Wagner, 581 F.3d at 417.

In Ground Two, Mr. Johnson argues “When Appellate counsel fails to raise the complete

lack of evidence of the element of intent regarding a murder conviction, appellant is denied the

effective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution.” (ECF #1 at PageID 7). He provided the following supporting facts:

Appellate counsel failed to argue the state’s failure to present any evidence of the

required element of intent, cannot be seriously disputed. Thus, the question turned

on several questions. First, whether intent is required to support a conviction for

murder under R.C. 2903.02(A); Two, whether the lack of intent is clearly established

on the face of the state court record; and three, whether appellant was prejudiced by

appellate counsel’s failure to address this issue on direct appeal.

While there was clear evidence that the initial fight involved Ms. Fowler, Mr. White,

and Petitioner Johnson, the prosecution failed to introduce evidence, or even suggest

that Johnson purposely caused the death of Ms. Fowler or that Johnson’s actions

showed the required mens rea element to support a murder conviction.

Due to appellate counsel’s ineffectiveness, the recent decision under State v.

Messenger, 2022-Ohio-4562 [216 N.E.3d 653 (Ohio 2022)] was not applied to this

case. In Messenger, the Supreme Court of Ohio stated, “in a murder case, ***, the

state’s rebuttal of a defendant’s claim of self-defense was not subject to review under

the sufficiency of the evidence standard, instead R.C. 2901.05(B)(1) provides that

the prosecution must prove beyond a reasonable doubt that the accused person did

not use the force in self-defense.” Id at ¶13. Johnson asserts that had appellate

counsel raised this issue, pursuant to Messenger, supra, the appellate court's review of

his sufficiency of evidence would have been reversible error. Johnson states that

since, the Ohio Court of Appeals failed to address the issue of intent, any Federal

review must be de novo.

(ECF #1 at PageID 7-8).

This is a different ineffective-assistance claim from the claims raised in his Rule 26(B)

application. There, alongside two other ineffective-assistance claims, Mr. Johnson argued his

appellate counsel was ineffective for failing “to raise trial counsel’s failure to seek jury instructions

on the lesser included offense of manslaughter.” (ECF #6-1 at PageID 193). In support of that

claim, he relied on two Ohio cases for support that he was entitled to a lesser-included-offense

instruction: State v. Anglen, No. 109049, 2020 WL 5949856 (Ohio Ct. App. Oct. 8, 2020), and

State v. Kidder, 513 N.E.2d 311 (Ohio 1987). (See ECF #6-1 at PageID 193-96).

In his reply, Mr. Johnson confirms the nature of his claim: “Appellant’s second Proposed

Ground for Relief argues Appellate Counsel’s failure to argue trial counsel’s failure to seek [a] jury

instruction [for] the lesser included offense of manslaughter.” (ECF #6-1 at PageID 231). He does

not mention Messenger in his application or reply at all. And he could not. Messenger was decided

on December 21, 2022—three months after he filed his application and five days after his reply.

(Cf. ECF #6-1 at PageID 189, 228).

When Mr. Johnson appealed the denial of his application to the Supreme Court of Ohio,

he changed his claim to “When appellant [sic] counsel fails to raise the complete lack of evidence

of the element of intent regarding a murder conviction, Appellant is denied the effective assistance

of counsel.” (Id. at PageID 251). There, Mr. Johnson first cites Messenger. (Id. at PageID 252). But

Mr. Johnson was aware that a reader may wonder if his claim has changed and so he wrote:

With respect to the second argument raised in the Application to Reopen Direct

Appeal, although the proposed error was raised as an ineffective counsel claim for

not seeking jury instructions on a lesser included offense of manslaughter, that entire

argument was based on the complete failure of the State to present evidence of intent

to support the murder conviction.

(Id. at PageID 252).

Mr. Johnson alleged two different errors by his appellate counsel: a failure to raise on

appeal ineffective assistance of trial counsel for not seeking a lesser-included-offense instruction

and a failure to raise on appeal that the State did not disprove he used force in self-defense. By

presenting two different theories for Ground Two before the Eighth District and the Supreme

Court of Ohio, Mr. Johnson did not pursue “one complete round” of Ohio’s appellate review

system on Ground Two. See Caver, 349 F.3d at 346. Thus, Ground Two is procedurally defaulted.

As discussed regarding Ground One, Mr. Johnson does not advance cause to excuse any

default. Unlike Ground One, a potential claim of ineffective assistance is no help here because

Ground Two is plainly meritless. Mr. Johnson argues his appellate counsel was ineffective because

he did not argue the applicability of Messenger. (ECF #1 at PageID 7-8; ECF #7 at PageID 292). But

the Supreme Court of Ohio decided Messenger on December 21, 2022, five months after the

Eighth District’s decision on his direct appeal2 (ECF #6-1 at PageID 132) and three months after

his appeal to the Supreme Court of Ohio (id. at PageID 150). Professional competence does not

require an attorney to divine the outcome of a case in the future and argue its applicability to a

court in the past. See Strickland v. Washington, 486 U.S. 668, 688 (1984) (to be deficient, an

attorney’s performance must “[fall] below an objective standard of reasonableness.”).

I thus recommend the District Court DISMISS Ground Two as procedurally defaulted.

B. Merits of Ground Three and Four

1. Ground Three lacks merit because appellate counsel cannot be ineffective for

allegedly not raising an issue that was raised or for arguing a then-non-existent

Supreme Court of Ohio case.

In Ground Three, Mr. Johnson argues his appellate counsel was ineffective for not arguing

he was entitled to have a jury decide the issue of self-defense. (ECF #1 at PageID 9). According to

Mr. Johnson, his appellate counsel did not properly argue the self-defense instruction issue raised

in Ground One and “should have framed the argument as the trial judge usurping the jury’s role

by making his own evaluation of the weight of the evidence and the credibility of the witnesses.”

(ECF #7 at PageID 293). Had his appellate counsel done so, the argument goes, the Eighth District

would have used the correct standard of review under Messenger. (ECF #1 at PageID 9).

Ground Three is plainly meritless. Ground Three has two components: (1) appellate

counsel should have argued the trial court usurped the jury’s role as factfinder, and (2) in doing so,

appellate counsel should have argued Messenger controlled. (See ECF #1 at PageID 9; ECF #7 at

2 There, Eighth District even noted the Tenth District’s decision in Messenger was on

appeal before the Supreme Court of Ohio and still pending by the time it decided Mr. Johnson’s

appeal. (ECF #6-1 at PageID 141 n.4).

PageID 293). The first component is factually incorrect and the second is logically impossible for

the same reason discussed regarding Ground Two.

The two-part test in Strickland governs Mr. Johnson’s ineffective-assistance-of-appellate-

counsel claims. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (applying Strickland to appellate

counsel). This standard requires the habeas petitioner establish (1) counsel’s representation fell

below an objective standard of reasonableness based on all the circumstances in the case, such that

the attorney did not function as “counsel” guaranteed by the Sixth Amendment, and (2) counsel’s

deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88. To satisfy the

deficiency prong, the habeas petitioner “must show that counsel’s representation fell below an

objective standard of reasonableness.” Id. at 668. And to satisfy the prejudice prong, the habeas

petitioner must show “a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. A reasonable probability is one sufficient to undermine

confidence in the outcome.” Id. at 694.

First, Mr. Johnson’s assertion in Ground Three that his appellate counsel should have

argued the trial court usurped the jury’s role as factfinder is factually incorrect. Contrary to that

assertion, the Eighth District noted in rejecting Mr. Johnson’s Rule 26(B) application that his

appellate counsel did argue the trial court usurped the jury’s role as the factfinder:

{¶10} However, appellate counsel directly addressed the issue by arguing that the trial

court erred by failing to instruct the jury on self-defense. He incorporated the role of

the jury in his argument: “Certainly the evidence was such that the question should

have gone to the jury for its consideration.” “The trial court’s refusal to allow the

question of self-defense to go to the jury for its consideration was error. The jury

would have been free to accept or reject the defense, but never had the opportunity.”

“By refusing the self-defense instruction, the lower court failed to ‘fully and

completely give the jury all instructions which are relevant and necessary for the jury

to weigh the evidence and discharge its duty as the fact finder.’” Appellate counsel in

the exercise of professional judgment was not ineffective for directly addressing the

issue as a failure to give a necessary jury instruction and emphasizing the role of the

jury as part of the argument.

(ECF #6-1 at PageID 241) (quoting id. at PageID 99, 101, 102) (internal record citations omitted).

Appellate counsel’s performance cannot be deficient for not raising an issue when counsel actually

raised it. See Payne v. Sloan, No. 1:18-CV-302, 2020 WL 10357233, at *26 (N.D. Ohio Nov. 23,

2020), report and recommendation adopted, No. 1:18CV302, 2021 WL 2952842 (N.D. Ohio July 14,

2021). Moreover, because counsel did raise the jury-usurpation argument, Mr. Johnson cannot

demonstrate as required there would have been any result other than that actually obtained.

See Strickland, 466 U.S. at 694.

The second component—that his attorney should have argued the applicability of

Messenger—is logically impossible. As discussed above for Ground Two, appellate counsel cannot be

ineffective for not arguing Messenger because that case was not decided until five months after Mr.

Johnson’s appeal to the Eighth District (ECF #6-1 at PageID 132) and three months after his

appeal to the Supreme Court of Ohio (id. at PageID 150). There is no “objective standard of

reasonableness” that mandates a lawyer must divine the outcome of a case that had not yet been

decided and argue its applicability to a court in the past. See Strickland, 466 U.S. at 688.

Nor can Mr. Johnson possibly show he was prejudiced. Even if counsel had been prescient

and knew the eventual outcome of Messenger, the Eighth District stated on his direct appeal:

Although not relevant to this case in which self-defense was not an affirmative defense

considered at the trial, in State v. Messenger, 2021-Ohio-2044, 174 N.E.3d 425 (10th

Dist.), the Tenth District concluded that “sufficiency of the evidence is not the

proper framework to review whether the state proved the absence of self-defense.” Id.

¶ 44-45. The Ohio Supreme Court accepted Messenger for review and has completed

oral arguments on the matter. See Supreme Court of Ohio Case No. 2021-0944. The

outcome of Messenger would not impact this case.

(ECF #6-1 at PageID 141 n.4) (emphasis added). Mr. Johnson cannot demonstrate there would

have been any a different outcome on appeal because the Eighth District already stated the

outcome would be the same had Messenger been argued. See Strickland, 466 U.S. at 694.

I thus recommend the District Court DENY Ground Three as meritless.

2. Ground Four lacks merit because the Eighth District reasonably rejected the

ineffective-assistance claim.

In Ground Four, Mr. Johnson argues he was denied effective assistance of counsel because

appellate counsel did not argue on appeal that the trial court erroneously admitted over objection

a video that labelled him the “shooter.” (See ECF #1 at PageID 11). Both Mr. Johnson and the

State agree the Eighth District’s decision is entitled to AEDPA deference. (See ECF #6 at PageID

61; ECF #7 at PageID 296). The State argues the Eighth District reasonably rejected Mr. Johnson’s

ineffective-assistance claim. (ECF #7 at PageID 61, 63).

As noted earlier, AEDPA “dictates a highly deferential standard for evaluating state-court

rulings which demands that state-court decisions be given the benefit of the doubt.” Bell, 543 U.S.

at 455 (citation and quotation omitted). Accordingly, Mr. Johnson must demonstrate the Eighth

District’s adjudication of his ineffective-assistance claim either “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law as

determined by the Supreme Court of the United States; or (2) resulted in a decision that was based

upon an unreasonable determination of the facts in light of the evidence presented in the State

court proceedings.” See 28 U.S.C. § 2254(d).

As noted in Ground Three, the two-part Strickland test is the clearly established federal law

governing Mr. Johnson’s ineffective-assistance claims. To reiterate, it requires a showing of

deficient performance by counsel and resulting prejudice to the defendant. Strickland, 466 U.S. at

687-88.

To satisfy the deficiency prong, the habeas petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 668. Because “[i]t is all

too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse

sentence, and it is all too easy for a court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable,” a court

“must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. This is an extremely deferential standard, because

“counsel is strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690.

To satisfy the prejudice prong, the habeas petitioner must show “a reasonable probability

that, but for counsel’s errors, the result of the proceeding would have been different. A reasonable

probability is one sufficient to undermine confidence in the outcome.” Id. at 694. The prejudice

inquiry “focuses on the question whether counsel’s deficient performance renders the result of the

trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372

(1993).

Establishing that a state court’s application of Strickland was unreasonable under § 2254(d)

is all the more difficult. See Harrington, 562 U.S. at 105. The standards created by Strickland and

§ 2254(d) are both highly deferential, see Strickland, 486 U.S. at 689; Lindh v. Murphy, 521 U.S.

320, 333, n.7 (1997), and when the two apply in tandem, review is “doubly so.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). The Strickland standard is a general one, so the range of

reasonable applications is substantial. Mirzayance, 556 U.S. at 123. Additionally, unreasonableness

under Strickland is different from unreasonableness under § 2254(d). Harrington, 562 U.S. at 105.

When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. Id.

Instead, the question is whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard. Id.

The Eighth District adjudicated Ground Four as follows:

{¶12} Johnson’s final argument is that it was error to label him as the “shooter” in

the synthesized video of the event. Multiple cameras in and around the bar captured

the event from various angles. The state synthesized the videos into one

approximately four-minute video showing the event as it occurred. The state labeled

Johnson as the “shooter” in the video. Johnson argues that this unfairly prejudiced

him in front of the jury. Although Johnson’s trial counsel objected to the label, in

his closing argument he acknowledged that the video shows Johnson shooting. Trial

counsel argued that this video showed him shooting in a downward direction, thus,

making it impossible for Johnson to be the killer, because the bullet that killed Fowler

entered her in an upward trajectory. (Tr. 590-591.)

{¶13} Johnson cites Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525

(1986), for the proposition that the test is whether there was an unacceptable risk of

prejudice. In that case, the United States Supreme Court ruled that having extra

uniformed officers in the courtroom was not inherently prejudicial as to deprive the

defendant of a fair trial. So too in the present case, the truth that Johnson fired his

gun and trial counsel’s efforts to use the video and the other evidence to show that

Johnson was not the killer did not deprive Johnson of a fair trial by labeling him as

the “shooter.” Following the admonition of the Supreme Court, this court rules that

appellate counsel in the exercise of professional judgment could properly decline to

make this argument.

(ECF #6-1 at PageID 243).

The Eighth District’s decision was not unreasonable under the doubly deferential standard.

Earlier in the decision, the Eighth District cited Strickland and discussed it and other cases applying

it. (Id. at PageID 239-41). The Eighth District decided “appellate counsel in the exercise of

professional judgment could properly decline to make this argument,” which is not contrary to

Strickland’s “strong presumption” that lawyers make significant decisions “in exercise of reasonable

professional judgment.” See 466 U.S. at 689-90. As the Strickland standard is a general one where

the range of reasonable applications is wide, see Mirzayance, 556 U.S. at 123, such a conclusion is

not “contrary” to Strickland as it is not “diametrically different, opposite in character or nature, or

mutually opposed” to Strickland. See Williams, 529 U.S. at 405.

Nor did the Eighth District unreasonably determine the facts around the unfair-prejudice

claim. Mr. Johnson points to the dissenting judge3 in his direct appeal who discusses the lack of

clarity on the firefight outside the nightclub. (ECF #7 at PageID 294-95 (citing ECF #6-1 at PageID

144-46)). But it was uncontested that Mr. Johnson had shot his firearm that night so labelling him

as at least a “shooter” was factually accurate.

The Eighth District was also not unreasonable in concluding Mr. Johnson’s trial counsel

had attempted to turn the video to his advantage to argue that because the video depicted Mr.

Johnson shooting in a downward direction, it was impossible for him to have fired the fatal bullet

because it entered in an upward trajectory. (ECF #6-2 at PageID 242). Because the video’s

identification also supported Mr. Johnson’s theory that he did not fire the fatal shot, it was

unlikely for Mr. Johnson to show he was materially prejudiced by the label to be successful on

appeal.

Mr. Johnson has not shown that there is no reasonable argument that his appellate counsel

satisfied Strickland’s deferential standard by not brining Ground Four on appeal. See Harrington,

562 U.S. at 105. The Eighth District reasonably determined the video’s identification helped his

3 That judge, Judge Anita Laster Mays, was also on the panel that unanimously

rejected Mr. Johnson’s application to reopen the direct appeal. (ECF #6-1 at PageID 144, 243).

defense at trial and that counsel in turn reasonably determined an unfair-prejudice claim would be

unlikely to overcome the deferential standard of review on appeal.

I thus recommend the District Court DENY Ground Four as meritless.

CERTIFICATE OF APPEALABILITY

A habeas petitioner may not appeal the denial of an application for a writ of habeas corpus

unless a judge issues a COA and specifies the issues that can be raised on appeal. 28 U.S.C. §

2253(c). “A [COA] may issue . . . only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has determined a

petitioner’s constitutional claim to lack merit, the petitioner “must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claim debatable or wrong”

before receiving a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court

denies a habeas petition on procedural grounds without reaching the petitioner’s underlying

constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was correct in its

procedural ruling. Id. A showing that the appeal would succeed on the claim is not needed to grant

a COA. Miller-El, 537 U.S. at 337.

Mr. Johnson asks for a COA on the following issue:

Whether the trial court improperly assumed the jury’s role by making its own

evaluation of the weight of the evidence and the credibility of the witnesses in

deciding not to give the self-defense instruction, in violation of the Due Process

Clause of the Fourteenth Amendment to the United States Constitution.

(ECF #7 at PageID 296). I note this is does not quite capture all of Ground One as Mr. Johnson

also argued the trial court violated his Sixth Amendment right to a fair trial. (See ECF #1 at PageID

5; ECF #7 at PageID 288-89). As Mr. Johnson is representing himself, I liberally construe his

request to include the Sixth Amendment issue. Boag, 454 U.S. at 365.

Mr. Johnson points to the fact the Eighth District divided on whether he was entitled to a

self-defense instruction as requiring a COA. (See ECF #7 at PageID 296) (citing Davidson v. Skipper,

No. 20-CV-13188, 2022 WL 4088177, at *7 (E.D. Mich. Sept. 6, 2022)). It is true that “‘[w]hen a

state appellate court is divided on the merits of the constitutional question, issuance of a [COA]

should ordinarily be routine.’” Davidson, 2022 WL 4088177, at *7 (quoting Jones v. Basinger, 635

F.3d 1030, 1040 (7th Cir. 2011)). But that requires the state appellate court to divide on a federal

constitutional question. See United States ex rel. Scott v. Atchison, No. 11 C 3442, 2012 WL 3234297, at

*7 (N.D. Ill. Aug. 2, 2012) (denying a COA despite a dissenting opinion by an Illinois appellate

judge because the dissenting opinion did not “reflect a disagreement ‘on the merits of the

constitutional question’” of ineffective assistance of counsel but disagreed on whether the

petitioner made a threshold showing for postconviction relief under Illinois law) (quoting Jones,

635 F.3d at 1040). The Eighth District did not split on whether Mr. Johnson’s Sixth or Fourteenth

Amendment rights were violated because, as stated above, he never presented that issue to the

Eighth District. Thus, Davidson does not apply here.

Moreover, jurists of reason would not find it debatable whether the Sixth or Fourteenth

Amendments require a state-law self-defense instruction on a defendant making a particular

showing of evidence. The Sixth Circuit has already settled the debate. See Keahey, 978 F.3d at

479-80 (noting “[n]o clearly established Supreme Court precedent gives an answer” to what specific

amount of evidence would trigger a federal constitutional right to a state-law self-defense

instruction). Even if there might be debate on the substance of Ground One, jurists of reason

would not debate whether Mr. Johnson procedurally defaulted the issue. I thus recommend the

District Court DENY Mr. Johnson the requested COA for Ground One.

Jurists of reason would also not debate whether Mr. Johnson procedurally defaulted

Ground Two nor debate the merits of Ground Three and Four. I thus recommend the District

Court DENY Mr. Johnson a COA as to all other grounds of his petition.

CONCLUSION AND RECOMMENDATION

For these reasons, I recommend the District Court DISMISS Grounds One and Two as

procedurally defaulted, DENY Grounds Three and Four as meritless, and DISMISS the petition. I

further recommend the District Court DENY Mr. Johnson’s requested certificate of appealability

on Ground One and DENY him a certificate of appealability on all other grounds.

Dated: March 28, 2025

YAW

DARRELL A. CLAY

UNITED STATES MAGISTRATE JUDGE

Objections, Review, and Appeal

A party must serve and file specific written objections to the proposed findings and

recommendations of the Magistrate Judge within 14 days after being served with a

copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2); see also

28 U.S.C. § 636(b)(1); Local Civ. R. 72.3(b). The district judge will review properly

asserted objections de novo.

If a party does not file objections within the specified time, it may result in the

forfeiture or waiver of the right to raise the issue on appeal, either to the district

judge or in a subsequent appeal to the United States Court of Appeals, depending

on how or whether the party responds to the Report and Recommendation.

Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific

28

and not merely indicate a general objection to the entirety of the Report and

Recommendation; “a general objection has the same effect as would a failure to

object.” , 932 F.2d 505, 509 (6th Cir.

1991). Objections should focus on specific concerns and not merely restate the

arguments in briefs submitted to the Magistrate Judge. “A reexamination of the

exact same argument that was presented to the Magistrate Judge without specific

objections ‘wastes judicial resources rather than saving them and runs contrary to

the purpose of the Magistrates Act.’” , No. 1:17-CV-00186, 2018

WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting , 932 F.2d at 509).

The failure to assert specific objections may in rare cases be excused in the interest

of justice. , 924 F.3d 868, 878-79 (6th Cir. 2019).