Johnson v. Miller

Filing 16

Order Johnson's objections to the Magistrate Judge's Report and Recommendation (Doc. 15 ) be, and the same hereby are, overruled. The Magistrate Judges Report and Recommendation (Doc. 14 ) be, and the same hereby is, adopted. The petition be, and the same hereby is, denied in part and dismissed in part, with prejudice. I decline to grant a certificate of appealability, as reasonable jurists could not disagree as to the outcome. In any event, Johnson could not take an appeal from this decision in good faith, and appeal should not be allowed without prepayment of the requisite filing fee. Judge James G. Carr on 3/22/16. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
David Johnson,

Case No. 5:14CV709

Petitioner,
v.

ORDER

Michelle, Miller, Warden,
Respondent.

Pro se petitioner David Johnson filed this habeas corpus action under 28 U.S.C.§ 2254. (Doc.
1). Johnson, a prisoner in state custody, names Warden Michelle Miller as respondent. I have
jurisdiction over the petition under § 2254(a).
Johnson is serving an aggregate sentence of thirty-one years in prison following his
conviction at jury trial of aggravated burglary, aggravated robbery, and disrupting public services.
In his petition, Johnson raises two grounds for relief: 1) his conviction was against the
manifest weight of the evidence and not supported by sufficient evidence; and 2) the trial court erred
by imposing consecutive sentences. (Doc. 1 at A).
The Magistrate Judge to whom I referred the petition has filed a Report and
Recommendation (R&R) recommending that I deny the petition in part and dismiss it in part. (Doc.
14). Following a de novo review of the R&R, I find the Magistrate Judge correctly concluded that
the petition lacks merit.
Background
For purposes of habeas corpus review of state court decisions, findings of fact made by a

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state court are presumed correct and I can only contravene them if the habeas petitioner shows,
byclear and convincing evidence, that the findings were erroneous. 28 U.S.C. § 2254(e)(1); see, e.g.,
Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir.
2001). This presumption of correctness applies to factual findings made by a state court of appeals
based on the state trial court record. Mitzel, 267 F.3d at 530.
Ohio’s Fifth District Court of Appeals set forth the following findings of fact in State v.
Johnson, 2012 WL 6014310, *1-2 (Ohio Ct. App.):
During the morning of April 24, 2007, Allen Hollar let his Sheltie out the back door
of his home on 18th Street in Canton. He waited for the dog to “do his business,” let
the dog in, and then fell asleep in a chair near the back door. He did not lock the door
when he returned inside with the dog.
Hollar woke up when he felt a gun pointed to the side of his head. He saw two black
males in his home wearing hoodies, gloves and ski masks. The man holding the gun
to his head was wearing a black ball cap. The man said to Hollar, “We need all your
cash or I’m going to blow your head off.” He repeated this several times. He then
frisked Hollar, finding Hollar’s billfold containing about $55.00 in cash, credit cards
and his driver’s license. The man kept asking Hollar for more money. Hollar ran a
limousine service out of his home and was known to be paid in cash.
The two men quietly went through the house. A family friend was sleeping in
another part of the house and did not wake up. While the dog normally “barks and
carries on,” he “just kind of laid there and watched what was going on.”
Hollar could hear one of the men rummaging through the bedroom closet. The man
unplugged the cordless phone in the home and put the handset in his jacket. The
robber also went through a filing cabinet before going upstairs. The man holding the
gun to Hollar’s head kept threatening Hollar, saying that he knew there was more
money. He then flipped the dining room table, stuck Hollar’s cell phone in his pocket
and said, “We know where you live, I’ll be back.” They then left through the back
door. The men spent 15-20 minutes in the house and left with cash, a watch, a
bracelet, a necklace, a pinky ring, Hollar’s billfold, and two phones.
Hollar watched the men leave by a small path between his garage and the neighbor’s
garage. The path was surrounded by hedges and a chain link fence. Hollar had a fax
machine and a phone disguised as a Cleveland Browns helmet which the robbers had
not discovered. He plugged in the fax machine and dialed 911.
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While searching the path where the men retreated, police found a black ball cap
identified by Hollar as the cap the robber holding the gun was wearing. The hat was
dry, in new condition and untouched by the elements. Police found wet, fresh spit on
the path and the tips of two cigars. Police also found fresh shoe prints.
The DNA profile taken from the ball cap and from the spit both came from the same
person and, when the profiles were entered into CODIS, they came back with a
match to a person named David Johnson. No arrest was made at the time. However,
while appellant was incarcerated pending trial on a felonious assault charge in 2011,
a search warrant was obtained for his DNA. Appellant’s DNA was compared to the
items submitted in the 2007 burglary and was found to be a match for the ball cap,
the spit and one of the cigarette filters. He also was identified as a possible
contributor of DNA found on the second cigarette filter.
The case proceeded to jury trial in the Stark County Common Pleas Court. At the
time, appellant was serving a fourteen year sentence for felonious assault with a
violent offender specification. Following trial, appellant was convicted of all
charges. The trial court merged the two firearm specifications and sentenced him to
nine years for aggravated burglary, five years for aggravated robbery, three years for
the firearm specification and one year for disrupting public services. He was ordered
to serve the sentences for aggravated burglary and aggravated robbery consecutively
to each other but concurrently with the sentence for disrupting public services.
(Citations omitted).
On appeal, Johnson asserted the same two grounds for relief he asserts here. Id., *2. On
November 29, 2012, the appellate court issued a decision and judgment finding each ground for
relief meritless. See generally id.
On January 14, 2013, Johnson, pro se, timely filed a notice of appeal with the Supreme Court
of Ohio. (Doc. 9, Attachment at 66). On March 27, 2013, the Supreme Court of Ohio declined to
accept jurisdiction of the appeal, dismissing the case. (Id. at 115).
On February 19, 2013, while Johnson’s direct appeal was pending before the Ohio Supreme
Court, he, pro se, timely filed a motion under Ohio Appellate Rule 26(B) with the Ohio appeals
court to reopen his appeal. (Id. at 116-36). On March 12, 2013, the Ohio court of appeals denied the
application to reopen. (Id. at 137-39).
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Johnson, pro se, then timely filed an appeal of that decision with the Supreme Court of Ohio.
(Id. at 140). On July 24, 2013, the Supreme Court of Ohio declined to accept jurisdiction, dismissing
the appeal. (Id. at 161).
The record does not show that Johnson sought a writ of certiorari from the Supreme Court
of the United States at any time during the appeals process.
Johnson timely filed the present petition for federal habeas relief on April 1, 2014. (Doc. 1).
Johnson’s asserts two grounds for relief: 1) insufficient evidence to support the jury’s guilty verdict,
which was against the manifest weight of the evidence; and 2) the trial court erred by ordering
Johnson to serve consecutive sentences. (Id. at A).
The State argues I should deny the component of ground one alleging the evidence was
insufficient to support conviction because the Ohio appeals court’s decision on this matter was not
an unreasonable application of clearly established federal law. (Doc. 9 at 10-15). Further, the State
contends I should dismiss as non-cognizable claims the component of ground one alleging the
verdict was against the manifest weight of the evidence, and all of ground two which contends that
the trial court improperly applied Ohio statutory law in imposing consecutive sentences. (Id. at 9,
16-18). I find the State’s arguments persuasive.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 1101 Stat.
1214 (AEDPA), applies to petitions filed after the AEDPA’s effective date. Stewart v. Erwin, 503
F.3d 488, 493 (6th Cir.2007). The controlling AEDPA provision (codified at 18 U.S.C. § 2254(d))
states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
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was adjudicated on the merits in State Court proceedings unless the adjudication of
the claim 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 on an unreasonable determination of
the facts in light of the evidence in the State court proceeding.
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case
differently than the Supreme Court has on a set of materially indistinguishable facts.’” Otte v. Houk,
654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13).
“A state court’s adjudication only results in an ‘unreasonable application’ of clearly
established federal law when ‘the state court identifies the correct governing legal principle from
the Supreme Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.’” Id. at 599-600 (quoting Williams, 529 U.S. at 413).
“The ‘unreasonable application’ clause requires the state court decision to be more than
incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “The state court’s application
of clearly established law must be objectively unreasonable.” Id.
To obtain federal habeas corpus relief, petitioner must establish the state court’s decision
“was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, 132 S.Ct. 26, 27
(2011) (citing Harrington v. Richter, 562 U.S. 86 (2011)). This standard is “difficult to meet”
because “habeas corpus ‘is a guard against extreme malfunctions in the state criminal justice

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systems,’ not a substitute for ordinary error correction through appeal.” Harrington, 131 S.Ct. at 786
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
In short, “[a] state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The petitioner carries the burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
1. The Evidence
In essence, Johnson argues the evidence against him was entirely circumstantial and not
credible, and therefore no rational trier of fact could have found him guilty. (Doc. 1 at 9-15). I
disagree.
On this issue, I must determine whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard “gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Id.
Consistent with the deference given to the trier of fact’s resolution of conflicts in evidence,
“a federal habeas corpus court faced with a record of historical facts that supports conflicting
inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson,
443 U.S. at 326; see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983).

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I am not permitted to reweigh evidence or in any way substitute my opinion for that of the
trier of fact. United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009)). Due process requirements are satisfied as long as such evidence is
enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a reasonable
speculation that the petitioner is guilty of the charged crime. Newman v. Metrish, 543 F.3d 793,
796-97 (6th Cir. 2008). “[T]he Jackson v. Virginia standard is so demanding that ‘[a] defendant who
challenges the sufficiency of the evidence to sustain his conviction faces a nearly insurmountable
hurdle.’” Davis, 658 F.3d at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
Not only must I defer to the trier of fact’s verdict under Jackson, but also to the state court’s
consideration of the verdict under AEDPA. See Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).
In this case, the Fifth District overruled Johnson’s insufficiency claim in Johnson, 2012 WL
6014310, *2-4:
In his first assignment of error, appellant argues his convictions are against the
manifest weight and sufficiency of the evidence. He argues no one identified him as
one of the robbers inside the home, and the items found in the alley with his DNA
are only evidence that he was outside the home.
In determining whether a verdict is against the manifest weight of the evidence, the
appellate court acts as a thirteenth juror and “in reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses, and
determines whether in resolving conflicts in evidence the jury ‘clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’”
An appellate court’s function when reviewing the sufficiency of the evidence is to
determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.
The elements of an offense may be established by direct evidence, circumstantial
evidence or both. Circumstantial evidence is defined as, “’[t]estimony not based on
actual personal knowledge or observation of the facts in controversy, but of other
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facts from which deductions are drawn, showing indirectly the facts, sought
proved.’”
....
Appellant is correct in noting that Hollar was unable to identify appellant as the man
who held a gun to his head, and the evidence in this case is circumstantial. However,
Hollar was able to identify the cap found on the secluded path behind his home as
the one worn by the man who held the gun to his head. Appellant’s DNA was on the
hat, which looked new and had not been exposed to the elements as if it had been on
the path for a long time. Further, police found fresh spit on the same path which
DNA testing revealed to be from appellant. The area was not a public area, and from
the DNA evidence collected with the path, coupled with Hollar’s testimony as to
what occurred in the house and his identification of the hat, the jury could have
concluded that appellant and his cohort invaded the home after Hollar left the door
unlocked when he let the dog out.
In State v. James, 5th Dist. No. 11 CAA050045, 2012-Ohio-966, this Court upheld
a conviction for burglary where the evidence linking the appellant to the crime was
his DNA found on a discarded cigarette butt in the driveway, and the condition of the
butt indicated that it had been left there recently. Similarly, in the instant case the
evidence found in the pathway behind Hollar’s home was fresh and the DNA found
on the items linked appellant to the crime.
The first assignment of error is overruled.
(Citations omitted).
The Fifth District applied the appropriate legal standard and determined that a reasonable
juror could have made adequate inferences of guilt from the evidence presented. Johnson’s argument
that the evidence was insufficient for conviction therefore fails, and I deny that component of
Johnson’s first ground for relief.
Johnson alternatively asks me to reweigh the evidence presented to the jury. (Doc. 1 at
14-15). I will not, nor am I permitted to, undertake that task. See Fisher, 648 F.3d at 450. I therefore
dismiss that component of Johnson’s first ground for relief.

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2. The Sentence
Federal habeas relief is available only when the petitioner is in custody in violation of the
Constitution, laws or treaties of the United States. 97 28 U.S.C. § 2254(a); see Engle v. Isaac, 456
U.S. 107, 119 (1982). It is therefore “not the province of the federal habeas court to reexamine State
court determinations on state law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As the
Supreme Court clearly stated in Lewis v. Jeffers, 497 U.S. 764, 779 (1990), “federal habeas corpus
relief does not lie for errors of state law.”
Here, Johnson’s argument regarding his sentence is that “the Trial Court erred in imposing
consecutive sentences on Petitioner without specifying whether R.C. § 2929.14(C)(a)-(c) applied
to Petitioner.” (Doc. 1 at 17). As such, this is entirely a question of whether the state court properly
applied state sentencing law, and so raises a claim for relief that is not cognizable in this court. I
therefore dismiss Johnson’s second ground for relief.
Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT:
1.

Johnson’s objections to the Magistrate Judge’s Report and Recommendation (Doc.
15) be, and the same hereby are, overruled;

2.

The Magistrate Judge’s Report and Recommendation (Doc. 14) be, and the same
hereby is, adopted; and

3.

The petition be, and the same hereby is, denied in part and dismissed in part, with
prejudice.

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I decline to grant a certificate of appealability, as reasonable jurists could not disagree as to
the outcome.
In any event, Johnson could not take an appeal from this decision in good faith, and appeal
should not be allowed without prepayment of the requisite filing fee.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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