Shuster v. Warden, Chillicothe Correctional Institution
Filing
25
OPINION and ORDER adopting and affirming 16 the Report and Recommendation; granting 21 and 22 Petitioner's Third and Fourth Motion for Extension of Time to File Objections. Signed by Judge Michael H. Watson on 3/4/2019. (jk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL SHANE SHUSTER,
Case No. 2:18-cv-211
Petitioner,
Judge Michael H. Watson
Magistrate Judge KImberly A. Jolson
V.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
On November 2,2018, Magistrate Judge Jolson issued an Order and Report
and Recommendation denying Petitioner's requests for discovery and an evidentiary
hearing, and recommending that the Petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 be dismissed. EOF No. 16. The Magistrate Judge twice granted
Petitioner's requests for an extension of time for filing his objections, until December
28, 2018. EOF Nos. 18, 20. On January 2, 2019, however. Petitioner filed a third
request for extension of time, seeking until January 18, 2019, to file his objections.
On January 17, 2019, he filed a fourth request for extension of time, seeking until
February 8,2019, to file his objections. After that date, on February 14, 2019,
Petitioner finally filed an Objection to the Magistrate Judge's Order and Report and
Recommendation. EOF No. 23.
This Court now GRANTS Petitioner's third and fourth requests for an
extension of time to file his objections, EOF Nos. 21,22, and will consider the
Objection filed through counsel now before the Court, so that Petitioner does not
waive his right to appeal. However, the filings deadlines of the Court may not be so
liberally enforced in the future. Moreover, to the extent that Petitioner seeks to
reserve his right to amend or supplement the objections, that request is DENIED.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review.
For the reasons that follow, Petitioner's Objection, EOF No. 23, is OVERRULED.
The Order and Report and Recommendation, EOF No. 16, is ADOPTED and
AFFIRMED. Petitioner's requests for discovery and an evidentiary hearing are
DENIED. This action is hereby DISMISSED.
The Court DECLINES to issue a certificate of appealability.
Petitioner challenges his convictions after a jury trial in the Franklin County
Court of Common Pleas on charges of gross sexual imposition, sexual battery, and
rape. He asserts that he was denied the effective assistance of counsel because his
attorney failed to attach a notarized statement from the witness providing the basis
for his motion for a new trial (claim one); that he was denied the effective assistance
of counsel because his attorney failed to present expert medical testimony to
contradict the State's witness, a nurse practitioner who bolstered the testimony of
B.E. regarding findings from medical personnel from the physical, failed to
investigate the psychological expert provided by Petitioner's family, failed to obtain
services of an investigator to challenge the credibility of the alleged victim, and failed
to supervise Mr. Zumbro, due to his lack of qualifications in the investigation (claim
two); that he was denied a fair trial based on prosecutorial misconduct due to the
prosecutor's reference to a non-existent confession during closing argument (claim
three); and that he was denied due process when the trial court denied his motion
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for a new trial (claim four). The Magistrate Judge recommended dismissal of claims
one and two on the merits, claim three as procedurally defauited, and claim four as
waived and failing to provide a basis for relief. Petitioner objects to those
recommendations.
Petitioner objects to the recommendation of dismissal of claims one and two,
asserting the denial of the effective assistance of counsei, on the merits. He raises
all of the same arguments he previously presented. He also objects to the
recommendation of dismissal of claims three and four as procedurally defaulted. He
argues that someone poisoned the jury pool with the idea that he had confessed to
the crime, and that he therefore did not obtain a fair trial. He argues that this claim
warrants relief despite his failure to raise the issue in the state appellate court or that
his assertion of the alleged violation of state law only provides him relief, because it
was so egregious as to deprive him of a fundamentally fair trial. Petitioner further
contends that he preserved his claim of prosecutorial misconduct by raising it on
direct appeal, or based on the state appellate court's plain error review.
The record does not support these arguments. The state appellate court did
not review Petitioner's claim that the prosecutor improperly referred to Petitioner's
non-existent confession during closing argument, because he did not raise the issue
on direct appeal. Petitioner likewise did not raise any federal claim based on the
submission of an affidavit from one of the jurors in the case indicating that they had
heard that Petitioner had confessed to the crime in the state appellate court. He
therefore has waived these issues for review in these proceedings. Further, and as
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noted by the Magistrate Judge, the Sixth Circuit has held that "there is no
'constitutional impediment to enforcing Ohio's aliunde rule", Hoffer v. Bradshaw, 622
F.3d 487, 501 (6th Cir. 2010) (citations omitted), and the Supreme Court has upheld
application of the Federal Rules of Evidence to prohibit use of a juror's testimony
that another juror lied during voirdire. See Gatliffv. Tibbals, No. 1:14-cv-931, 2015
WL 8481565, at *16 (S.D. Ohio Dec. 10, 2015) (citing Warger v. Shauers, 135 S.Ct.
521 (2014)). Under these circumstances, this Court is not persuaded that the state
court's denial of Petitioner's motion for a new trial constituted a due process
violation.
For these reasons and for the reasons already detailed in the Magistrate
Judge's Order and Report and Recommendation, Petitioner's Objection, ECF No.
23, is OVERRULED. The Order and Report and Recommendation, ECF No. 16, is
ADOPTED and AFFIRMED. Petitioner's request for discovery and an evidentiary
hearing are DENIED. This action is hereby DISMISSED.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
States District Courts, the Court now considers whether to issue a certificate of
appealabiiity. In contrast to an ordinary civil litigant, a state prisoner who seeks a
writ of habeas corpus in federal court holds no automatic right to appeal from an
adverse decision by a district court. 28 U.S.C. § 2253(c)(1) (requiring a habeas
petitioner to obtain a certificate of appealabiiity in order to appeal).
When a claim has been denied on the merits, a certificate of appealabiiity
may issue only if the petitioner "has made a substantial showing of the denial of a
Case No. 2:18-cv-211
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constitutional right." 28 U.S.C. § 2253(c)(2). To make a substantial showing of the
denial of a constitutional right, a petitioner must show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were 'adequate to
deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473,484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim
has been denied on procedural grounds, a certificate of appealability may issue if
the petitioner establishes 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.
The Court is not persuaded that reasonable jurists would debate this Court's
dismissal of Petitioner's claims as waived or as failing to provide a basis for relief.
The Court therefore DECLINES to issue a certificate of appealability.
The Court certifies that the appeal would not be in good faith and that an
application to proceed In forma pauperls on appeal should be DENIED.
The Clerk is DIRECTED to enter final JUDGMENT.
IT IS SO ORDERED.
MrCHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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