Grissom v. Warden, London Correctional Institution

Filing 2

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, the Court should also deny any requested certificate of appealability a nd certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/3/2017. Signed by Magistrate Judge Michael R. Merz on 12/20/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KHRYSTOPHER GRISSOM,
Petitioner,

:

- vs -

Case No. 3:16-cv-508
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

JEFF NOBLE, WARDEN,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for initial review
pursuant to Rule 4 of the Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.”
Although Petitioner has not paid the filing fee or submitted an application to proceed in
forma pauperis, the Court finds that, as an incarcerated person, he is indigent and sua sponte
grants him leave to proceed in forma pauperis.
Petitioner Grissom seeks relief from his convictions in the Montgomery County Common
Pleas Court on charges of felonious assault, discharging a firearm on or near a prohibited
premises, and one count of having weapons under disability (Petition, ECF No. 1, PageID 1).He
was tried and convicted by a jury for an incident that occurred in September 2012.
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Grissom pleads two grounds for relief:
Ground One: Trial Court Abused its Discretion
Supporting Facts: The trial court abused its discretion in
violation of the Fourteenth Amendment to the United States
Constitution when they denied Appellant’s motion for leave to file
a new trial based on Newly discovered evidence “Exhibit A
Affidavit” that show [sic] misconduct of the Prosecuting Attorney
and the witness for the state.
Ground Two: Trial Court Abused its Discretion
Supporting Facts: Appellant assert [sic] that the Trial Court
Abuse [sic] its Discretion when it violated the Petitioner[‘s]
Fourteenth Amendment to the United States Constitution when the
record remain incomplete and the Appellant [sic] Court did not
correct it to have a fair and correct record to have a meaningful
appeal.
(Petition, ECF No. 1, PageID 4.)
The relevant facts are described in the opinion of the Second District Court of Appeals on
direct appeal.
On September 29, 2012, at approximately 11:30 p.m., Daniel
Sammons was walking out of a Speedway gas station store on
North Dixie Drive in Harrison Township, Ohio, when the door he
used to exit the store grazed Grissom's arm. Grissom, who had
been standing outside and leaning his shoulder against the door,
became angry after the door grazed him, and he began cussing at
Sammons. In response, Sammons looked at Grissom and walked
away. The confrontation between Sammons and Grissom at
Speedway is not in dispute.
Sammons, however, testified that as he walked away, Grissom
came toward him and said: "I'm a shoot you up." Additionally,
Chris Watkins, a passenger sitting in Sammons's Jeep Liberty
parked nearby, testified that he heard Grissom say "shoot you up"
to Sammons in an escalated voice. Thereafter, both Watkins and
Sammons saw Grissom run and jump inside a maroon Ford
Expedition parked nearby. It is undisputed that Grissom was in the
driver's seat of the Expedition and that Grissom followed
Sammons's Jeep out of Speedway and onto North Dixie Drive.
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Sammons and Watkins testified that Grissom sped up very close to
the rear of Sammons's Jeep and changed lanes so that the
Expedition was on the Jeep's driver's side. Both men then heard a
gunshot fire into the Jeep as they were driving. Neither Sammons
nor Watkins saw a gun, but Watkins testified that he saw a flash
and could tell that the gunshot came from the front-seat area of the
Expedition. It is undisputed that there was a gunshot fired at the
Jeep and that it came from somewhere inside the Expedition.
The gunshot shattered the rear window of Sammons's Jeep and hit
the left side of the driver's seat. In response to the gunshot,
Sammons testified that he slammed on the brakes and called 9-1-1.
Additionally, both Sammons and Watkins testified that they
followed the Expedition, which continued to drive away from them
after the shot was fired. Sammons and Watkins also testified that
they pulled over after spotting a State Trooper on the side of the
road, and that they told the officer what had happened.
Londell Johnson, a passenger in the Expedition driven by Grissom,
testified that the Expedition belonged to his sister, who is
Grissom's girlfriend. Johnson testified that on the night of the
shooting, his brother, Lewis, and Grissom's friend, Jaye, were also
riding as passengers in the Expedition. According to Johnson, Jaye
was seated in the front-passenger seat and he and Lewis were in
the back.
Johnson also testified that when they went to Speedway, he,
Grissom, and Lewis got out of the Expedition, and that Grissom
was the last person to return to the vehicle. While Johnson did not
see Grissom's confrontation with Sammons, he testified that
Grissom returned to the Expedition and said: "Dude just bumped
me." When Johnson inquired who bumped him, Grissom pointed
to Sammons's Jeep. Johnson testified that Grissom was the only
person in the vehicle that got angry about the confrontation and
that he and Lewis were trying to calm him down.
In addition, Johnson testified that he heard a gunshot while they
were riding beside the Jeep and that he heard someone say: "Watch
out, little bro." He further testified that the gunshot came from
inside their vehicle, but that he did not see who fired the gun. After
the gunshot, Johnson testified that Grissom drove away. At trial,
Johnson's testimony regarding who fired the gun was impeached
using a written statement that Johnson gave to police two days
after the shooting. Johnson acknowledged that he wrote as part of
his statement that, "Jimmy [a.k.a. Grissom] shot the gun." Johnson
further acknowledged that he had indicated in his statement that
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Grissom told him to say that Jaye had fired the gun. Furthermore,
Johnson testified that he and the other passengers had no reason to
shoot Sammons.
State v. Grissom, 2016-Ohio-961, *; 2016 Ohio App. LEXIS 881 (2nd Dist. Mar. 16, 2016).
On September 8, 2014, after an unsuccessful initial appeal to the Second District and to
the Ohio Supreme Court, Grissom filed a motion for leave to file a delayed motion for new trial
under Ohio R. Crim. P. 33 which requires such a motion when a defendant seeks to file a motion
for new trial more than 120 days after judgment. The trial court denied the motion and Grissom
appealed. He contended that the trial record was incorrect and the Second District remanded to
allow the trial court to consider a motion to correct the record, which it denied. Grissom then
placed the two claims he makes here before the Second District, which denied relief. State v.
Grissom, supra. The Ohio Supreme Court declined jurisdiction over an appeal. State v. Grissom,
146 Ohio St. 3d 1431 (2016). Grissom thus exhausted his available state court remedies and
filed his Petition here within the one-year statute of limitations.

Analysis

Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions.

In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). Although Grissom characterizes both of his claims as made under
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the Due Process Clause of the Fourteenth Amendment, it is not a due process violation for a state
court judge to act in abuse of his or her discretion. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Moreover, consideration of the thorough opinion of Judge Froelich for the Second
District shows that no abuse of discretion occurred. The substance of Johnson’s post-trial
affidavit was already dealt with at length at trial so that the jury had an opportunity to consider
the merits of Grissom’s claims about Johnson’s testimony in arriving at its verdict. Where that
has occurred, there is no occasion for a new trial for a new jury to hear substantially the same
evidence as was heard by the first jury. In any event, the Second District is clearly correct that
Grissom knew of the inconsistencies in Johnson’s version of the events at the time of trial and
was not “unavoidably prevented” from discovering it until after the direct appeal was complete.
With respect to the Second Ground for Relief, the Second District concluded that there
was no abuse of discretion in the trial court’s failure to change the record or that any possible
change was immaterial to Grissom’s claim that Johnson’s post-trial affidavit was newly
discovered.
In sum, this Court cannot reach the question whether the trial judge abused his or her
discretion because such an abuse, even if it happened, would not violate the Fourteenth
Amendment. If it were authorized to reach that question, it would find no error in the Second
District’s decision.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this

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conclusion, the Court should also deny any requested certificate of appealability and certify to
the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.

December 20, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
153-55 (1985).

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