Turner v. Warden, Madison Correctional Institution

Filing 31

DECISION AND ENTRY ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. # 20 ) AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. # 27 ), OVERRULING ALL OBJECTIONS OF PETITIONER TEVIUS STAFFORD TURNER THERETO (DOCS. ## 25 AND 30 ) AND O VERRULING PETITION FOR WRIT OF HABEAS CORPUS (DOC. # 3 ); JUDGMENT TO ENTER IN FAVOR OF RESPONDENT WARDEN, MARION CORRECTIONAL INSTITUTION, AND AGAINST PETITIONER; PETITIONER DENIED A CERTIFICATE OF APPEALABILITY AND RIGHT TO APPEAL IN FORMA PAUPERI S; TERMINATION ENTRY - Based on the reasoning set forth above, this Court ADOPTS the Initial and Supplemental Reports, Docs. ## 20 & 27 , in their entireties and OVERRULES Petitioner's objections thereto. Docs. ## 25 & 30 The Court herein d ismisses the case for lack of a cognizable claim for habeas relief under 28 U. S.C. § 2254. Judgement will enter in favor of the Respondent and against Petitioner. As Petitioner has not made a "substantial showing of the denial of a consti tutional right," 28 U. S. C. § 2253(c)(2), and reasonable jurists would not disagree, he is denied a certificate of appealability. On that basis, this Court certifies to the United States Court of Appeals for the Sixth Circuit that any a ppeal would be objectively frivolous and recommends that Petitioner be denied leave to proceed on appeal in forma pauperis. The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. Signed by Judge Walter H. Rice on 8/28/2024. (acw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TEVIUS STAFFORD TURNER,
Petitioner,

Case No. 3:22-cv-303

V.

JUDGE WALTER H. RICE

WARDEN, MARION
CORRECTIONAL INSTITUTION,
Respondent.

DECISION AND ENTRY ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATIONS (DOC. #20) AND SUPPLEMENTAL REPORT AND
RECOMMENDATIONS (DOC. #2~7}, OVERRULING ALL OBJECTIONS OF
PETITIONER TEVIUS STAFFORD TURNER THERETO (DOCS. ##25 AND 30) AND
OVERRULING PETITION FOR WRIT OF HABEAS CORPUS (DOC. ff3); JUDGMENT
TO ENTER IN FAVOR OF RESPONDENT WARDEN, MARION CORRECTIONAL

INSTITUTION, AND AGAINST PETITIONER; PETITIONER DENIED A CERTIFICATE
OF APPEALABILITY

AND

RIGHT

TO

APPEAL

IN

FORMA

PAUPERIS;

TERMINATION ENTRY

This matter is before the Court on Magistrate Judge Michael R. Merz's Report
and Recommendations, Doc. ^22, and Supplemental Report and Recommendations,

Doc. # 27, and the Objections thereto of Petitioner Tevius Stafford Turner. Docs.
^25, 30.

This Court has reviewed said Reports, the applicable law, and the

Objections thereto, and has conducted a thorough de novo review of the Petition for
Writ of Habeas Corpus, state court record and exhibits, return of writ. Petitioner's
Reply and related filings. Docs. ##3, 8, 9, and 16.

For the reasons set forth below, the Court adopts all Reports and
Recommendations

and OVERRULES all Objections thereto, and, in doing so,

OVERRULESthe Petition.
I.

Procedural Back round

On November 28, 2016, Turner was indicted by a grand jury in a six-count
indictment which included one count of aggravated murder (O. R. C. § 2903. 01 (A),

Count One), two counts of murder (O. R. C. §§ 2903. 02(A), Count Two &
2903. 02(B), Count Three), one count of felonious assault (O. R. C. § 2903. 11 (A)(1),
Count Four), one count of tampering with evidence (O. R. C. § 2921. 12(A)(1), Count
Five) and one count of improperly handling a firearm in a motor vehicle (O. R. C. §
2923. 16(B), Count Six). Record, Doc. ff8, PagelD ffff78-80. Turner pleaded not
guilty to all counts. Id. at PagelD #81

Following a jury trial. Turner was found not guilty of aggravated murder (Count
One), but guilty of both counts of murder, as well as the counts of felonious assault,
tampering with evidence, and improperly handling a firearm in a motor vehicle
(Counts Two through Six)

Doc. #3, PagelD #49. At sentencing, the trial court

merged Counts Two through Four and opted to sentence Turner on Count Two.
Doc. #8, PagelD ##118-21. On September 5, 2017, Turner was sentenced to a
term of imprisonment of eighteen years to life. Id.

Turner then filed an appeal of his sentence to the Second District Court of

Appeals, arguing four assignments of error: (1) Insufficient evidence to prove murder
under O. R. C. §§ 2903. 02(A) & (B); (2) permitting a witness to refresh her memory
2

via use of the 91 1 dispatch log; (3) failure to provide a jury instruction for reckless
homicide and involuntary manslaughter; and (4) failure to conduct a hearing on

counsel's challenge to the racial makeup of the jury pool. Doc. ff8, PagelD ##13245. On January 18, 2019, the Court of Appeals affirmed in part and reversed in

part and remanded the case to the trial court for further proceedings, agreeing that
the jury should have been given an instruction on reckless homicide. Id. at PagelD
##168, 181; State v. Turner, 2d Dist. dark Cnty. No. 2017-CA-78, 2019-Ohio144, I 38 (Jan. 18, 2019) ("Turner /"). When the appellate court in Turner I
overturned Turner's conviction, it declined to rule on the sufficiency of evidence

regarding the merged offenses because, under Ohio case law, a finding of guilt
without a resulting sentence is not defined as a conviction and, therefore, is not
subject to appeal. 2019-0hio-144 at 122.
Following that decision. Turner remained in prison. On April 20, 2020, after

more than a year of inactivity on his case. Turner filed a motion to dismiss for
violation of his right to a speedy trial. Doc. #3, PagelD #36; Record, Doc. #8, PagelD
##202-11 (citing U. S. CONST. amend. VI; OHIO CONST. art I, § 10). The trial court
denied this motion on August 14, 2020. Doc. #8, PagelD #217. At the September

9, 2020 resentencing, the trial court sentenced Turner to a term of incarceration of
eighteen years to life on Count Three as well as concurrent sentences on Counts
Five and Six. Id. at PagelD ^#222-23.

Turner then filed an appeal of his resentencing to the Second District Court of

Appeals, arguing a single assignment of error: the trial court should not be permitted

to resentence Turner because the decision by the Court of Appeals required a new

trial. Doc. #8, PagelD ##271-87. On June 30, 2021, the Court of Appeals affirmed
the sentence and overruled Turner's lone assignment of error. Id. at PagelD ##310-

18; State v. Turner. 2d Dist. dark Cnty. No. 2020-CA-49, 2021-0hio-2216 (June
30, 2021) ("Turner II").

Notably, after he was resentenced. Turner failed to

challenge the validity of the guilty verdicts for felony murder and felonious assault
(Counts Three and Four). Turner II, 2021-0hio-2216 at 111. Turner then filed a

notice of appeal to the Ohio Supreme Court, which was declined by the Court on
October 26, 2021. State v. Turner, 175 N. E. Sd 576, 2021-0hio-3730 (Ohio 2021)
On October 27, 2022, Turner filed the instant petition for a writ of habeas

corpus. His stated claims are: Denial of the right to a trial by jury and the effective
representation of counsel as guaranteed by the Sixth and Fourteenth Amendments
(Claim One); and Denial of speedy trial rights as guaranteed by the Sixth and

Fourteenth Amendments (Claim Two), boc. #3, PagelD ^#38-40. The Magistrate
Judge has filed a Report and Recommendations ("R&R"), Doc. #20, as well as a
Supplemental R&R. Doc. #27. Turner has filed objections to both R&Rs. Doc
##25, 30.
The petition is ripe for decision.
II.

Factual Back round

Factual findings by a state court "shall be presumed to be correct, " unless
rebutted "by clear and convincing evidence. "
Smith, 161 F. 3d 358, 360-61 (6th Cir. 1998)
4

28 U. S. C. § 2254(e)(1); Warren v.
Because Turner has not provided

any evidence to rebut the presumption of correctness, this Court adopts the factual
record as presented by the Ohio Second District Court of Appeals.
In summarizing the evidence submitted at trial and the facts underlying
Turner's convictions, the Second District presented the facts as follows:

Turner was the manager of a Springfield-area hotel where Evan Stewart
had worked as a cook until being fired. On November 18, 2016,
Stewart arrived at the hotel before noon to pick up his final paycheck.

Turner greeted Stewart, placed Stewart's paycheck and some cash on
the hotel's front desk, and asked Stewart to sign over the paycheck to

repay money Turner previously had loaned to Stewart. The cash was
intended to compensate for the difference between the amount of the

paycheck and what Stewart owed Turner on the personal loan. An
argument about Stewart's termination ensued. When Turner walked
away to attend to other business matters, Stewart left with both his
paycheck and the cash.

Stewart proceeded to a local convenience store in a Chevy Malibu
driven by Melody Turner, his cousin. 1 Accompanied by hotel employee
Leanna Mills, Turner thereafter drove to the same location in his black

BMW. Upon arriving. Turner parked his car next to Melody's Malibu.
Stewart already had entered the store and unsuccessfully attempted to
cash his paycheck. Turner met him inside and again requested the
check, but Stewart refused to surrender it. Stewart then left the store

and got into the passenger's seat of the Malibu, where Melody was
waiting in the driver's seat.
Turner also exited the store and returned to his BMW, where he

retrieved a handgun from the center console. Turner approached the
passenger's side window of the Malibu and reached across Stewart
with his left hand to grab an envelope (presumably containing either
Stewart's paycheck or Turner's cash) while holding the gun in his right
hand, pointed toward Stewart.
At trial, the State played video recordings from the store's security
cameras of Turner's and Stewart's encounters both inside and outside
1 "Although Stewart's cousin and appellant Turner share the same last name, they are not related.
To avoid confusion, [the court] will refer to Melody Turner by her first name. " Turner I, 2019-Ohio144 at n. 3.

the store. Stewart testified that the Malibu "was already in reverse"
when Turner walked up to the passenger side and reached inside.
Stewart said that while the car was backing up, he and Turner "tussled'
as Stewart tried to remove Turner's left arm from the Malibu's

passenger window. Stewart claimed, however, that he never grabbed
or touched the gun. He testified that the gun was in Turner's right hand
with Turner's finger on the trigger. Stewart said that, as Melody shifted
the Malibu into drive and pulled forward, he heard a gunshot, looked

over, and saw Melody bleeding and unresponsive with her foot on the

gas pedal. Stewart took the wheel of the moving vehicle and steered
it into an intersection where he managed to stop.

Melody died as the result of a single gunshot to the head. Stewart
promptly identified the shooter as Turner, whom police located a few
hours later on Interstate 75 in Kentucky near the Tennessee border.

The gun, which Turner claimed to have thrown into a grassy area
somewhere along that highway, was not recovered.

Testifying in his own defense at trial. Turner admitted having a dispute
with Stewart about the paycheck.

He also admitted retrieving a

handgun from his BMW and approaching the passenger's side of the
Malibu with the gun in his right hand. Turner stated that he only
intended to "scare" Stewart into giving him back either the paycheck
or the cash. Instead, with Turner's arm and upper body inside the
Malibu, he and Stewart began to struggle over the weapon. Turner
testified that Stewart grabbed the gun while the vehicle was moving

and that the gun "just went off. "

Turner claimed that he "never

intended to hurt anyone."

On cross examination, Turner testified that he recently had acquired the

gun for protection but did not realize that it was loaded. "I've never
purchased any bullets. * * * | had never put any ammo in it. I never
did anything. I [just] put it in the middle console. " He also denied
"racking" a round into the chamber and claimed that his finger was not
on the trigger when the weapon fired.

Mills, Turner's passenger, testified that upon exiting the store. Turner
returned to his BMW and opened the center console before walking to
the Malibu where Stewart was seated. She heard "a noise

like a

cocking sound" - "like [he was] cocking his gun" - as Turner and
Stewart argued. Mills saw the two men "tussling" through the car
window. With Turner leaning into the Malibu, Mills heard Stewart tell
the driver of the Malibu "to pull off, " then heard a gunshot.

Mills recalled Turner's pulling his BMW alongside the Malibu after the
shooting.
As Stewart attempted to steer the Malibu from the

passenger's seat, he told Turner that Melody was dead. According to
Mills, Turner just kept demanding his money. Mills also testified that,
after the shooting. Turner got back into his car and stated, "I don't
know why I just did that."
Detective Ronald W. Jordan of the Springfield Police Department
testified that while investigating Melody's death, he viewed the
surveillance video from outside the store where the shooting had
occurred. He said that video depicted a man "with a firearm in his right
hand" near a car identified as Turner's. However, the detective did not
identify the specific type of weapon shown.

Based on his training and experience. Detective Jordan testified that
some revolvers have "a cocking mechanism" that makes "[a] clicking

sound" when the gun is cocked, while other, "single-action" revolvers
do not need to be cocked in order to be fired. He further testified that
a semiautomatic handgun cannot be fired until a bullet is loaded into

the chamber by moving the "slide" back and forward again, which
makes "a distinctive sound that anyone that's been around firearms

recognizes * * *. " Although he first described that sliding action as
making "a clicking sound, " he clarified that "I wouldn't necessarily say
it's a click" when the slide moves forward. After simulating for the jury
the motion that would be required to chamber a round in a
semiautomatic weapon. Detective Jordan opined that the store

videotape depicted Turner's arms positioned in a manner "similar" to
what Detective Jordan had just demonstrated. On cross-examination,
however. Detective Jordan confirmed that the weapon used in

Melody's shooting never was recovered, and that no ammunition or

gun-cleaning equipment was found during searches of Turner's
residence and car.

The State also called Detective Jordan as a rebuttal witness. Detective

Jordan testified that a handgun has a trigger guard to help prevent

inadvertent firing. He explained that "you would have to place your
finger inside the trigger guard to depress the trigger, " which moves
"[b]ack towards the person that has it in their hand."
Turner 1, 2019-0hio-144 at 1^2-13.

III.

Anal sis

In the Supplemental Report and Recommendations, the Magistrate Judge
concluded that Turner's ineffective assistance of counsel claim is procedurally

defaulted; that reckless homicide is not a lesser included offense of felony murder;
and that the ineffective assistance of counsel claim is meritless. Supplemental R&R,

Doc. #27, PagelD ##1387-91. In response. Turner states two claims under which
he argues entitlement to a habeas petition.
Turner's first claim is a denial of the right to a trial by jury and the effective

assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. Doc.

#3, PagelD #38. To determine whether this claim has been procedurally defaulted,
the Sixth Circuit applies a four-part analysis:
First the court must determine that there is a state procedural rule that

is applicable to the petitioner's claim and that the petitioner failed to
comply with the rule. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction. . . .

Third, the court must decide whether the state procedural forfeiture is
an "adequate and independent" state ground on which the state can

rely to foreclose review of a federal constitutional claim. . . .
Once the court determines that a state procedural rule was not complied
with and that the rule was an adequate and independent state ground,

then the petitioner must demonstrate under Sykes that there was
"cause" for him to not follow the procedural rule and that he was
actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F. 2d 135, 138 (6th Cir. 1986) (citations omitted); see also
Wainwright v. Sykes, 433 U. S. 72 (1977).
8

Under the Ohio Rules of Appellate Procedure, claims of ineffective assistance

of counsel must be presented by an application to reopen the appeal filed within

ninety days of the judgment. OHIO R. APP. P. 26(B)(1). Here, the ninety-day-clock
would have started on the date that the Supreme Court of Ohio declined jurisdiction

of his appeal of Turner II, October 26, 2021. Turner's time to file the Rule 26(B)
Application therefore elapsed on January 24, 2022. Because Turner failed to comply
with Rule 26(B), the first element of the test is met. Turner's failure to file the

Application has foreclosed the Court of Appeals from enforcing the state procedural
sanction, but under Sixth Circuit precedent, "the time constraints of Rule 26(B) [have
been] firmly established and regularly followed, " and therefore the second element

is met. Wogenstahl v. Mitchell, 668 F. 3d 307, 322 (6th Cir. 2012) (internal
quotation omitted).

For the same reason. Rule 26(B) is also an adequate and

independent ground on which to find procedural fault, meeting the third element. Id.
Turner attempts to meet his burden under the fourth element with two

arguments, both of which fall short. First, he argues that he sought a stay from the
Magistrate Judge in this case to be able to file the Rule 26(B) Application in state
court. Doc. #30, PagelD #1398. However, this application was filed on April 21,
2023, more than a year after the January 2022 deadline for filing the application.
Turner's stance that he intended to show deference to the court and wait for a

response before filing is meritless, considering that the deadline in which to file a
Rule 26(B) Application had long since passed before he asked the court for the stay

9

Turner next argues that his untimeliness should be excused because he
believed he had indeed prevailed in Turner I.

Doc. #30, PagelD #1398.

This

argument seemingly ignores that the clock for the Rule 26(B) application was not

counting those days between Turner I and Turner II. Instead, it started only when
the Turner II case was concluded by the Supreme Court of Ohio declining jurisdiction
in October 2021. Neither of the rationales excuses Turner's untimeliness in failing

to file a 26(B) application and, because the other Maupin elements are met, his claim
of ineffective assistance of counsel has been procedurally defaulted and therefore
barred.

Turner's second ground is a denial of his speedy trial rights as guaranteed by
the Sixth and Fourteenth Amendments. Doc. #3. PagelD #40. He bases this claim

on the nineteenth-month delay before he was resentenced after Turner I. Id. at

PagelD ##58-61. Under Turner's view, the delay prejudiced him because y'[t]he
Second District Court of Appeals' decision entitled Mr. Turner to a new trial. " Id. at

PagelD #59. This view, however, misstates what the Court of Appeals concluded
in Turner I and what they reiterated in Turner II.

In Turner I, the Court of Appeals reversed Turner's purposeful murder (Count
Two) conviction only and affirmed as to all other convictions. 2019-0hio-144 at

Tf47. In Turner II, the Court of Appeals attempted to reiterate this by stating that
Turner's guilty verdicts on the other convictions were still available to be sentenced
on. 2021 -Ohio-2216 at 120. The Court of Appeals was clear that Turner was only
entitled to a new trial if the State wanted to retry the single overturned count of
10

purposeful murder. Count Two. When the State opted not to retry Turner on Count
Two, the trial court was free to resentence Turner pursuant to one of the other
Counts on which he was convicted.

Although the Court understands that Turner believed he was entitled to a new

trial, this is simply a mistake of law. The decision in Turner II, clarifying that he was
not entitled to a new trial, is not an unreasonable application of Supreme Court

precedent. 28 U. S. C. § 2254(d)(1). Therefore, any delay in sentencing was not
constitutionally infirm and Ground Two should be dismissed.
IV.

Conclusion

Based on the reasoning set forth above, this Court ADOPTS the Initial and

Supplemental Reports, Docs. ##2. Q & 27, in their entireties and OVERRULES
Petitioner's objections thereto. Docs. ##25 & 30
The Court herein dismisses the case for lack of a cognizable claim for habeas

relief under 28 U. S. C. § 2254. Judgement will enter in favor of the Respondent and
against Petitioner.

As Petitioner has not made a "substantial showing of the denial of a

constitutional right, " 28 U. S. C. § 2253(c)(2), and reasonable jurists would not
disagree, he is denied a certificate of appealability. On that basis, this Court certifies
to the United States Court of Appeals for the Sixth Circuit that any appeal would be

objectively frivolous and recommends that Petitioner be denied leave to proceed on
appeal in forma pauperis.

11

The captioned case is hereby ordered terminated upon the docket records of
the United States District Court for the Southern District of Ohio, Western Division,
at Dayton.

Date: August 28, 2024
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

12