Shine-Johnson v. Warden, Belmont Correctional Institution

Filing 63

DECISION AND ORDER DENYING MOTION TO CERTIFYQUESTIONS TO THE SUPREME COURT OF OHIO 62 . Signed by Magistrate Judge Michael R. Merz on 2/16/2021. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JOSEPH SHINE-JOHNSON,
Petitioner,

:

- vs -

Case No. 2:20-cv-1873
Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz

WARDEN,
Belmont Correctional Institution,
:
Respondent.

DECISION AND ORDER DENYING MOTION TO CERTIFY
QUESTIONS TO THE SUPREME COURT OF OHIO

This habeas corpus case, brought pro se by Petitioner Joseph Shine-Johnson under 28
U.S.C. § 2254, is before the Court on Petitioner’s Motion to Certify Question[s] of Law to the
Supreme Court of Ohio (ECF No. 62).
This is Petitioner’s second such motion in this case. Previously he sought to have the Court
certify a question which the Magistrate Judge found raised an issue of federal constitutional law
instead of a question of state law (Motion, ECF Nos. 11, 26). In the prior Decision, the Magistrate
Judge recited the relevant history of the Ohio Supreme Court rule allowing certification of
questions and that history need not be repeated here.
The questions posited in the instant Motion are all questions of state law:
Question 1: In order to claim self-defense, does a defendant need
to retreat or avoid a danger that is merely speculative or must there
be an imminent danger of death or great bodily harm before the
defendant has any duty to retreat or avoid the danger? (Motion, ECF
No. 62, PageID 5993).
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Question 2: Does the person lose the right to use deadly force if he
retreat from a cohabitant in his home and in the midst of that retreat
is forcibly removed or ejected from the home into his yard, while
face with a continuing imminent threat, thus requiring to retreat
further because he is not in the confines of his home? Id. at PageID
5997.
Question 3: Does the claim of self-defense admit murder? Id.
Unlike the questions sought to be certified in Shine-Johnson’s prior motion, these are all
questions of Ohio law. However, they were or could have been presented to the Supreme Court
of Ohio in the ordinary course of direct appeal in this case.
After his conviction in this case in the Franklin County Court of Common Pleas, ShineJohnson appealed to the Tenth District Court of Appeals which affirmed. State v. Shine-Johnson,
2018-Ohio-3347 (10th Dist. Aug. 21, 2018). As Petitioner has advised this Court repeatedly, the
decision was by a divided panel. Petitioner presented eight assignments of error on appeal. Judge
Tyack dissented on the basis that the prosecutor had misstated the law regarding duty to retreat.
Id. at ¶¶ 124-27.
On appeal to the Supreme Court of Ohio, Shine-Johnson through counsel raised one
proposition of law:
Proposition of Law: In order to claim self-defense, a defendant
need not retreat from or avoid a danger that is merely speculative;
instead, there must be an imminent danger of death or great bodily
harm before a defendant has any duty to retreat or avoid the danger.
(Memorandum in Support of Jurisdiction, State Court Record, ECF No. 39, Ex. 71, PageID 835).
The Memorandum presented a cogent reason why the Supreme Court of Ohio should take the case
in light of continuing controversy over the defense of self-defense. Id. at PageID 836-37.
Nevertheless, the high court declined to take jurisdiction with its usual formal Entry. Id. at Ex. 73,
reported at 155 Ohio St. 3d 1439 (2019). No justice dissented.

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Thus the Supreme Court of Ohio was given an opportunity to address the questions of selfdefense presented by this case and, at least to some extent presented by Judge Tyack’s dissent and
they unanimously chose not to do so.
The certification of questions of law process was not designed or intended to allow a habeas
petitioner who has lost in an attempt to get the Ohio Supreme Court to hear his case another bite
at the apple. As pointed out in the Decision on the prior Motion to Certify, the Supreme Court of
Ohio’s acceptance of a certified question is completely discretionary with that court. While
Petitioner’s Motion does present questions of Ohio law which that court could answer, it would be
a vain act to ask them to do so when they have already unanimously declined to do so.
Petitioner’s Motion to Certify (ECF No. 62) is DENIED.

February 16, 2021.
s/ Michael R. Merz
United States Magistrate Judge

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