Johnson Jr V Maiorana
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELVIN E. JOHNSON, JR., CASE NO. 4:24-cv-898
Petitioner, DISTRICT JUDGE
CHRISTOPHER A. BOYKO
vs.
MAGISTRATE JUDGE
WARDEN CHARLES MAIORANA, JAMES E. GRIMES JR.
Respondent.
REPORT &
RECOMMENDATION
Petitioner Melvin E. Johnson, Jr. has filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. Johnson is in federal custody at
Canaan U.S.P. and challenges his conviction and sentence in the case State v.
Johnson, Mahoning County Court of Common Pleas, Case No. 13-CR-380D.1
The Court referred this matter to a Magistrate Judge under Local Rule 72.2
for the preparation of a Report and Recommendation. For the following
reasons, I recommend that the Court dismiss the Petition.
Summary of facts
In habeas corpus proceedings brought by a person under 28 U.S.C. §
2254, factual determinations made by state courts are presumed correct. 28
1 Although Johnson is currently in custody serving a federal sentence,
this Court has jurisdiction over Johnson’s petition challenging his state-court
conviction because Johnson will serve this state sentence after he serves his
federal sentence. See Doc. 9-1, at 145; Maleng v. Cook, 490 U.S. 488, 493 (1989).
U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that
presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d
439, 447 (6th Cir. 2012).
The Ohio Court of Appeals for the Seventh Appellate District
summarized the facts underlying Johnson’s conviction as follows:
The Organization
{¶2} This case involves crimes related to a million
dollar drug distribution organization led by Vincent
Moorer and DeWaylyn “Waylo” Colvin. Originally,
two separate drug distribution organizations
existed: a group led by Colvin that sold heroin and a
group led by Moorer that sold crack cocaine. At some
point, the two groups merged and formed one heroin
distribution organization. Colvin and Moorer were
jointly in charge of the organization. Appellant was
known as a “triggerman” within the organization. A
triggerman is responsible for the deaths of anyone
who did not pay money owed to the organization or
harmed or offended someone in the organization.
Indictments
{¶3} This matter arose from an April 11, 2013
indictment charging Colvin, Michael Austin, and
Hakeem Henderson with various drug offenses. On
May 16, 2013, a superseding indictment was filed
against Colvin, Austin, and Henderson. On May 21,
2015, a second superseding indictment was filed and
added Moorer, Appellant, and Nahdia Baker as
defendants. Baker is also a member of the
organization. Appellant was charged in thirteen of
the counts.
* * *
J.M. Incident
{¶5} On March 20, 2014, J.M. was shot near the
intersection of South Avenue and Mathews Road.
According to M.P., a member of the organization,
J.M. was targeted because Moorer believed that he
had set up Dashonti Baker to be robbed. Baker is
also a member of the organization. Moorer obtained
a phone belonging to Dashonti Baker and used it to
text J.M. to set up a fake drug deal and lure him to
the South Avenue/Mathews Road location.
{¶6} Moorer drove a rented sports utility vehicle
(“SUV”) to the South Avenue/Mathews Road
location. M.P. sat in the front passenger seat and
Appellant sat in the backseat. Once the SUV arrived
at the targeted location, Appellant exited the SUV
with a gun on his person. Moorer drove into the
parking lot of a nearby car wash and waited.
Appellant approached J.M. and fired approximately
four shots at J.M. who fell to the ground. Appellant
ran back to the SUV which drove away after picking
up Appellant.
{¶7} J.M. made his way to the intersection of Cook
and Evans Avenues before police officers located
him. According to Officer Joseph O’Grady, J.M. had
been shot three times. Det. Glenn Patton testified
that he was able to secure J.M.’s phone at the scene
and retrieved the text message conversation with
Baker’s phone using a tool called “Cellbrite.”
Trial
{¶8} Appellant and his codefendant Moorer were
tried in a bench trial commencing on March 2, 2017.
The remaining defendants were tried in two
separate trials.
State v. Johnson, No. 17 MA 0050, 2019 WL 1400096, at *1–2 (Ohio Ct. App.
March 19, 2019).
Procedural background
Trial court proceedings
In May 2015, a Mahoning County Grand Jury indicted Johnson in a
second superseding indictment on fifteen counts. Doc. 9-1 at 7–22 (Exhibit 1).2
These included four counts of attempted murder, in violation of Ohio Revised
Code § 2903.02(A)(D) (counts 15, 22, 24, and 26); four counts of felonious
assault, in violation of Ohio Revised Code § 2903.11(A)(2)(D) (counts 16, 23, 25,
and 27); two counts of having a weapon while under disability, in violation of
Ohio Revised Code § 2923.13(A)(2)(B) (counts 17 and 28); one count of
aggravated arson, in violation of Ohio Revised Code §2909.02(A)(2)(B)(1)(3)
(count 18); one count of arson, in violation of Ohio Revised Code §
2909.03(A)(1)(B)(1)(2)(b) (count 19); two counts of improperly discharging a
firearm into a habitation, in violation of Ohio Revised Code § 2923.161(A)(1)(C)
(counts 20 and 21); and one count of engaging in a pattern of corrupt activity,
in violation of Ohio Revised Code § 2923.32(A)(1)(B) (count 29). Id. Counts 15,
16, and 20 through 27 contained firearm specifications. Id. Johnson, through
counsel, pleaded not guilty to all of the charges. Id. at 24 (Exhibit 2).
Johnson filed several motions before and during the bench trial, which
began on February 21, 2017, some of which he filed pro se. In October and
November 2016, Johnson moved to dismiss the indictment as defective and to
2 In this report and recommendation, all of the citations to the docket refer
to the ECF document and page number shown at the top of the page.
strike the testimony of State witness Morris Perry. Doc. 9-1 at 26, 33 (Exhibits
3 & 4). In January 2017, defense counsel moved to exclude Perry’s “opinion”
testimony as hearsay. Id. at 41 (Exhibit 5). In February 2017, Johnson and his
counsel jointly moved to strike Perry’s testimony and to dismiss the
indictment, id. at 44–45 (Exhibit 6), and the next day the trial court overruled
Johnson’s February motion, id. at 53, 55 (Exhibits 7 & 8).
A few days later, defense counsel filed a motion in limine to exclude the
proposed testimony of Johnson’s former attorney about incriminating
statements Johnson allegedly made in the jail after meeting with former
counsel. Doc. 9-1 at 67 (Exhibit 11). The trial court denied the motion because
it found that any statement Johnson made wasn’t made to his attorney, but to
the guard, so it was not protected by the attorney-client privilege. Doc. 9-2, at
32–33. Johnson’s counsel filed a supplemental memorandum, which the trial
court denied. Doc. 9-1, at 57, 65. (Exhibits 9 & 10).
In March 2017, Johnson filed a pro se motion to suppress Perry’s
statement, Doc. 9-1 at 114 (Exhibit 16), and to dismiss his case based on speedy
trial violations, id. at 120. (Exhibit 17). The trial court overruled the motions,
finding that it had already considered the issues. Id. at125 (Exhibit 18).
After a bench trial, see Doc. 9-1, at 137 (Exhibit 21), the trial court found
Johnson guilty of: attempted murder of John Myles (count 15) and the
attendant firearm specification; felonious assault of John Myles (count 16) and
the attendant firearm specification; having a weapon while under a disability
(count 17); and engaging in a pattern of corrupt activity (count 29). Id. at 140–
41 (Exhibit 22). The court found Johnson not guilty on the remaining counts.
Id. At sentencing on March 22, 2017, the court merged counts 15 and 16. Id. at
144 (Exhibit 23). The court sentenced Johnson to 11 years in prison on count
15, and 3 years for the attendant firearm specification; 3 years in prison on
count 17; and 11 years in prison on count 29, for a total of 28 years in prison.
Id. at 145. The court ordered the sentences to run consecutive to each other
and to Johnson’s prior federal sentence. Id.
State habeas petition
In April 2017, Johnson filed in the trial court a pro se state petition for
a writ of habeas corpus. Doc. 9-1, at 80 (Exhibit 13). The State moved to dismiss
the petition for technical deficiencies, including that Johnson had an adequate
remedy available at law in the form of a direct appeal. Id. at 93, 96 (Exhibit
14). On April 20, 2017, the trial court overruled Johnson’s petition. Id. at 112
(Exhibit 15).
Direct appeal
Johnson, through new counsel, appealed to the Ohio court of appeals.3
Doc. 9-1, at 148 (Exhibit 24); 153 (Exhibit 26). In his brief, Johnson raised the
3 Johnson had filed a pro se appeal before the trial court had sentenced
him, Doc. 9-1, at 127 (Exhibit 19), which the Ohio court of appeals rejected as
premature, id. at 135 (Exhibit 20).
following assignments of error:4
1. The evidence in this case was insufficient as a
matter of law to support the convictions.
2. The verdicts in this case were against the
manifest weight of the evidence.
3. The admission of unauthenticated cell phone text
messages violates the Confrontation Clause of the
Sixth Amendment to the United States
Constitution.
4. Unspecified “other drug offenses” cannot serve as
predicate Offense for a conviction of engaging in a
pattern of corrupt activity unless such prior
conviction was expressly alleged in the indictment.
Id. at 154. On March 19, 2019, the Ohio court of appeals affirmed Johnson’s
convictions. Id. at 332 (Exhibit 29).
In December 2024, Johnson filed a pro se motion for leave to file a
delayed appeal with the Ohio Supreme Court. Doc. 22-1, at 2 (Exhibit 29-A).
In February 2025, the Ohio Supreme Court denied Johnson’s motion Id. at 24
(Exhibit 29-B).
State postconviction petition
Meanwhile, in March 2017, Johnson filed a timely pro se petition for
post-conviction relief. Doc. 9-1, at 253 (Exhibit 30). The State moved for
judgment on the pleadings. Id. at 267 (Exhibit 31). On June 16, 2017, the trial
court sustained the State’s motion for judgment on the pleadings, finding that
4 In this report and recommendation, Johnson’s grounds for relief are
reproduced as written.
Johnson failed to submit any competent, credible evidence outside the record
to support a constitutional violation or his actual innocence. Id. at 279 (Exhibit
32).
Motion for leave to file a motion for new trial
On June 22, 2022, Johnson, through new counsel, moved under Ohio
Criminal Rule 33 for leave to file a motion for new trial based on newly
discovered evidence. Doc. 9-1, at 281 (Exhibit 33). Johnson attached to his
motion affidavits from: the victim, John Myles, who denied that Johnson shot
him or that he had said that Johnson shot him; Morris Perry, who denied
participating in or knowing about a criminal enterprise with Johnson; and
Johnson, who stated that the affidavits contained exculpatory information that
he could not have discovered at the time of trial with reasonable diligence. Id.
at 282–89. On June 22, 2022, the trial court overruled Johnson’s motion. Id. at
308 (Exhibit 35). On September 6, 2022, Johnson moved for reconsideration
and attached a second copy of the victim’s affidavit. Id. at 376–78 (Exhibit 47).
On September 27, 2022, the trial court denied Johnson’s motion for
reconsideration. Id. at 381 (Exhibit 48).
Meanwhile, on September 6, 2022, Johnson appealed to the Ohio court
of appeals the trial court’s denial of his motion for leave to file a motion for new
trial, Doc. 9-1, at 310 (Exhibit 36), and filed a motion for leave to file a delayed
appeal, id. at 313 (Exhibit 37). The Ohio court of appeals granted Johnson’s
motion for leave to file a delayed appeal. Id. at 325 (Exhibit 39). In his appellate
brief, Johnson raised the following assignments of error:
1. The trial court erred and abused its discretion in
summarily denying appellant’s motion for leave to
file a motion for a new trial based upon newly
discovered evidence, without a hearing.
2. The trial court erred in summarily denying
appellant’s motion without making any factual
findings or conclusions of law or holding a hearing,
thereby abusing its discretion in denying appellant’s
motion for leave to file a motion for a new trial.
Doc. 9-1, at 330, 333 (Exhibit 40). On March 23, 2023, the Ohio court of appeals
affirmed the trial court’s judgment. Id. at 349 (Exhibit 42).
On March 30, 2023, Johnson timely appealed to the Ohio Supreme
Court. Doc. 9-1, at 363 (Exhibit 43). In his memorandum in support of
jurisdiction, Johnson raised the same issues of law recited above. Id. at 366.
On May 23, 2023, the Ohio Supreme Court declined to accept jurisdiction of
the appeal. Id. at 374 (Exhibit 46).
Motions for discovery
In September 2024, Johnson, through counsel, filed in the trial court a
motion for discovery, which the trial court denied the following month. Doc. 22-
1, at 25 (Exhibit 46-A). Johnson also filed on both of his appellate-court dockets
a combined motion to release any discovery documents within court files for
the purpose of advancing a federal habeas petition. Id. at 27 (Exhibit 46-B). In
October 2024, the Ohio court of appeals denied Johnson’s motion in one case
because the file was no longer with it. Id. at 28 (Exhibit 46-C). In December
2024, a magistrate in the other case denied Johnson’s motion for the same
reason. Id. at 29 (Exhibit 46-D).
Federal habeas corpus petition
On May 21, 2024, Johnson, through counsel, filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Doc. 1. On February 25, 2025, Johnson,
with leave of court, filed a second amended petition for a writ of habeas corpus.
Doc. 16. In his second amended petition, he raises the following four grounds
for relief:
Ground one: Denial of Due Process in Failing to
Grant Leave to File a Motion for New Trial.
Supporting facts: Petioner presented the
sworn affidavits of two new material witnesses,
which would very likely result in an acquittal verdict
at trial. Alleged victim, John Willie Myles, now
states that it was not petitioner who shot him.
Material State witness, Morris Perry, has recanted
his origial testimony and now states that he was
subjected to intense pressure by police to testify for
the State.
Ground two: Actual Innocence of the Crimes
Supporting facts: Alleged victim, John Willie
Myles, now states that it was not petitioner who shot
him. Material state witness, Morris Perry, has
recanted his original testimony and now states that
he was subjected to intensive pressure by police to
testify for the State.
Ground three: Violation of the Confrontation
Clause
Supporting facts: The trial court allowed the
prosecution to introduce unauthenticated phone text
messages into evidence, these text messages were
testimonial in nature and the recipient of these
messages did not testify.
Ground four: Due Proces Violation—lnufficient
Indictment
Supporting facts: The indictment did not
adequetley place defendant on notice of the federal
charges that the state used ss predicate acts to
establish that he was engaging in a pattern of
corrupt activity as charged.
Doc. 1, at 5–10; Doc. 16. The Warden filed a Return of Writ, Doc. 22, and
Johnson filed a traverse, Doc. 24.
Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain
procedural requirements to have their claims reviewed in federal court. Smith
v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural
barriers, such as statutes of limitations and rules concerning procedural
default and exhaustion of remedies, operate to limit access to review on the
merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381
(2001). Although procedural default is sometimes confused with exhaustion,
exhaustion and procedural default are distinct concepts. Williams v. Anderson,
460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state
remedies are “still available at the time of the federal petition.” Id. (quoting
Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies
are no longer available, procedural default rather than exhaustion applies. Id.
Exhaustion
A federal court may not grant a writ of habeas corpus unless the
petitioner has exhausted all available remedies in state court. 28 U.S.C. §
2254(b)(1)(A). A state defendant with federal constitutional claims must fairly
present those claims to the state courts before raising them in a federal habeas
corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher
v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have
jurisdiction to consider a claim in a habeas petition that was not ‘fairly
presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877
(6th Cir. 2003)). A constitutional claim for relief must be presented to the
state’s highest court to satisfy the fair presentation requirement. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Hafley v. Sowders, 902
F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the
factual and legal underpinnings of the claims to the state courts. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner
must present his claim to the state courts as a federal constitutional issue—
not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984).
Procedural default
Procedural default may occur in two ways. Williams, 460 F.3d at 806.
First, a petitioner procedurally defaults a claim by failing “to comply with state
procedural rules in presenting [the] claim to the appropriate state court.” Id.
In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors
when determining whether a claim is barred on habeas corpus review due to a
petitioner’s failure to comply with a state procedural rule: whether (1) there is
a state procedural rule applicable to the petitioner’s claim and whether the
petitioner failed to comply with that rule; (2) the state court enforced the
procedural rule; (3) the state procedural rule is an adequate and independent
state ground on which the state can foreclose review of the federal
constitutional claim; and (4) the petitioner can demonstrate cause for failing to
follow the rule and actual prejudice by the alleged constitutional error. 785
F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the
petitioner’s failure to comply with the procedural rule, the state court declines
to reach the merits of the issue, and the state procedural rule is an independent
and adequate grounds for precluding relief, the claim is procedurally
defaulted.”) (citing Maupin, 785 F.2d at 138).
Second, “a petitioner may procedurally default a claim by failing to raise
a claim in state court, and pursue that claim through the state’s ‘ordinary
appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan,
526 U.S. at 848). “If, at the time of the federal habeas petition, state law no
longer allows the petitioner to raise the claim, the claim is procedurally
defaulted.” Id. While the exhaustion requirement is satisfied because there are
no longer any state remedies available to the petitioner, see Coleman v.
Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal
claims considered in the state courts constitutes a procedural default of those
claims that bars federal court review, Williams, 460 F.3d at 806.
To overcome a procedural bar, petitioners must show cause for the
default and actual prejudice that resulted from the alleged violation of federal
law that forms the basis of their challenge, or that there will be a fundamental
miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at
750.
Merits review
If a state’s courts adjudicated the merits of a claim, a habeas petitioner
may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish
one of two predicates. To establish the first predicate, the petitioner “must
identify a ‘clearly established’ principle of ‘Federal law’ that” has been
established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218,
231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must
then show that state’s court’s adjudication “was contrary to,” or “involved an
unreasonable application of” that “clearly established” precedent. 28 U.S.C. §
2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232.
To establish the second predicate, the petitioner must show that the
state’s court’s adjudication “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2).
“Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached by the
[United States Supreme] Court on a question of law or” based on “a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13
(2000). “Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing legal
principle from th[e] Court’s decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application
of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely
wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419
(2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)).
“[A] ‘clearly established’ principle of ‘Federal law’ refers to the
“holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at
231 (quoting White, 572 U.S. at 419). A state court is not required to cite
Supreme Court precedent or reflect an “awareness” of Supreme Court cases,
“so long as neither the reasoning nor the result of the state-court decision
contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v.
Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not
addressed the petitioner’s specific claims, a reviewing district court cannot find
that a state court acted contrary to, or unreasonably applied, Supreme Court
precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70,
77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for
instances in which a state court unreasonably applies this Court’s precedent;
it does not require state courts to extend that precedent or license federal
courts to treat the failure to do so as error.”).
In determining whether the state court’s decision involved an
unreasonable application of law, the Court uses an objective standard.
Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks
merit precludes federal habeas review so long as ‘fair-minded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state
prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fair-
minded disagreement.” Harrington, 562 U.S. at 103.
Discussion
Ground one is not cognizable
In ground one, Johnson alleges that his due process rights were violated
when the trial court denied him leave to file a motion for a new trial. Doc. 1, at
5; Doc. 16, at 1. To recap: more than three years after the Ohio court of appeals
affirmed his conviction, Johnson filed in the trial court a motion for leave to
file a motion for new trial. Doc. 9-1, at 281–89. In support of his motion,
Johnson submitted affidavits from two individuals—the victim (John Myles)
and a State witness (Morris Perry)—which, Johnson alleged, indicated that
Johnson was not the shooter. Id. at 285–89. The trial court denied Johnson’s
motion and the Ohio court of appeals affirmed, finding that Johnson’s motion
for leave was untimely under Ohio Criminal Rule 33(B). Id. at 349–61; State v.
Johnson, Case No. 22 MA 0096, 2023 WL 2599552, at *3–7 (Ohio Ct. App.
March 21, 2023).
In his Traverse, Johnson asserts that ground one has “several different
branches.” Doc. 24, at 8. He contends that the affidavits he submitted with his
motion for leave to file a motion for new trial “clearly contradict the State’s
contention that [Johnson] was the shooter.” Id. And he says that the affidavits
“mention police coercion/suggestion[] in trying to obtain witness identifications
of [Johnson] as the triggerman.” Id. Respondent argues that this ground is not
cognizable.5 Doc. 22, at 21.
First, I discuss what Johnson hasn’t alleged. In his Traverse, when
describing the two “branches” of ground one, Johnson discusses the trial court’s
allegedly “arbitrary denial” of his motion and also mentions his “right to
5 Respondent also argues that ground one is procedurally defaulted
because Johnson didn’t present this claim to the Ohio courts as a federal
constitutional issue. Doc. 22, at 13–15. Johnson disputes this contention. Doc.
24, at 2–3. When the merits of a claim, or, as here, the cognziability of a claim,
is more straightforward than the procedural default question, a court isn’t
required to first address procedural default. See, e.g., Reynolds v. Wainwright,
No. 3:19-cv-1666, 2020 WL 6492830, at *13 (N.D. Ohio Oct. 8, 2020) (citing
cases, including Lambrix v. Singletary, 520 U.S. 518, 525 (1997)), report and
recommendation adopted, 2020 WL 6488286 (N.D. Ohio Nov. 4, 2020). So I only
address the cognizability of ground one.
present a defense.” Doc. 24, at 8–9. As for an “arbitrary denial,” Johnson made
this argument to the state court when he claimed that the trial court abused
its discretion in denying his motion. See Doc. 9-1, at 366. Johnson does not
make an abuse-of-discretion claim in his habeas petition, see Doc. 1, at 5, Doc.
16, and if he had it would be not cognizable, see Sinistaj v. Burt, 66 F.3d 804,
808 (6th Cir. 1995) (while an underlying constitutional claim may constitute
federal habeas relief, whether the state court abused its discretion in denying
the defendant relief on that underlying claim is not itself a federal
constitutional violation). Nor has Johnson alleged a “right to present a defense”
claim. See Doc. 1, at 5; Doc. 16. He may not attempt to do so in his Traverse.
See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2000) (claims raised for the
first time in a traverse are improper); see Rice v. Warden, Warren Corr. Inst.,
786 F. App’x 32, 38 (6th Cir. 2019). That leaves Johnson’s due process claim.
Johnson’s motion for leave to file a motion for new trial is a state
collateral proceeding because Johnson filed it well after the Ohio court of
appeals affirmed his conviction on direct appeal. See Pudelski v. Wilson, 576
F.3d 595, 610 (6th Cir. 2009). And the Sixth Circuit “has consistently held that
errors in post-conviction proceedings are outside the scope of federal habeas
corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing Roe
v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) and Kirby v. Dutton, 794 F.2d 245,
246–47 (6th Cir. 1986)); see Leonard v. Warden, Ohio State Penitentiary, 846
F.3d 832, 854 (6th Cir. 2017). Ground one is therefore not cognizable. See also
Mock v. Bracy, No. 4:22-cv-937, 2024 WL 2347279, at *21 (N.D. Ohio May 22,
2024) (finding that “a state court’s denial of a post-judgment motion for leave
to file a delayed motion for a new trial[] is ‘not cognizable in a federal habeas
corpus action.’”), certificate of appealability denied, No. 24-3563, 2024 WL
5278796 (6th Cir. Nov. 7, 2024).
Moreover, the Ohio court of appeals found untimely under Ohio
Criminal Rule 33(B) Johnson’s motion for leave to file a motion for new trial.
The court explained that Johnson’s submitted affidavits “do not facially
support a claim that [Johnson] was unavoidably prevented from timely
discovering the evidence upon which his motion for new trial could rely.” State
v. Johnson, Case No. 22 MA 0096, 2023 WL 2599552, at *3–7 (Ohio Ct. App.
March 21, 2023); see also Ohio Crim Rule 33(B) (late motions for a new trial
based on newly discovered evidence must show “by clear and convincing proof
that the defendant was unavoidably prevented from the discovery of the
evidence upon which he must rely”). Johnson does not challenge this finding.
He only argues that the affidavits he submitted would show that he was not
the shooter, Doc. 1, at 5, Doc. 24, at 2–3, 8–9, but this doesn’t address the
timeliness issue.
Not only has Johnson failed to address this issue, but Rule 33(B)’s
requirement that a defendant who files a late motion for a new trial must prove
that he was “unavoidably prevented from the discovery of the evidence upon
which he must rely,” see Ohio Crim. R. 33(B), is a state-law issue not cognizable
on federal habeas review,6 see Pudelski, 576 F.3d at 611 (“even though [the
petitioner] invokes the concept of federal due process, his claim is clearly
premised on issues of state law …. [n]ot subject to habeas review.”) (citing
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)). And Johnson has not shown
how the state court’s application of Rule 33(B) would offend fundamental
fairness or otherwise violate his due process rights. See Pudelski, 576 F.3d at
611.
In any event, Johnson’s claim—if he had sufficiently articulated it and
this Court were to consider it—would fail. The Ohio court of appeals discussed
Johnson’s submitted affidavits and, in relevant part, explained:
{¶24} “One way that a defendant may satisfy the
‘unavoidably prevented’ requirement contained in
Crim.R. 33(B) is by establishing that the prosecution
suppressed the evidence on which the defendant
would rely when seeking a new trial.” McNeal, –––
Ohio St.3d ––––, 2022-Ohio-2703 at ¶ 2. In McNeal,
the defendant’s motion for leave was accompanied
by the affidavit of the defendant’s trial counsel
establishing a Brady violation by the state’s failure
to disclose in discovery the victim’s blood alcohol
test, which tended to disprove an element of rape
6 Johnson cites Glossip v. Oklahoma, 145 S. Ct. 612 (2025), in support of
ground one. Doc. 24, at 3. But in Glossip, the Supreme Court reviewed the case
on direct appeal from state court—not as a federal habeas case. See Glossip,
145 S.Ct. at 624. Moreover, in Glossip, the State conceded constitutional error
and the Court found that it could review the state court’s ruling because the
state court’s procedural bar was based on federal law, rather than state law.
See Glossip, 145 S.Ct. at 625. Here, Respondent has not conceded error and the
Ohio court of appeals’ procedural bar rested firmly on state law. See Johnson,
2023 WL 2599552, at *5–7; see also Guy v. Warden, No. 21-4164, 2022 U.S.
App. LEXIS 20779, at *11 (6th Cir. July 27, 2022) (“Rule 33(B)[’s timing
requirement] is an adequate and independent state ground for denying federal
habeas relief.”).
and impeach the victim’s testimony about her ability
to resist or consent being substantially impaired. See
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963) (duty to disclose favorable and
material evidence) and Strickler v. Greene, 527 U.S.
263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)
(same rule applicable to impeaching evidence). The
Supreme Court concluded the defendant’s motion for
leave to file a new trial motion should have been
granted because his counsel’s affidavit set forth a
prima facie case that he was unavoidably prevented
from timely moving for a new trial due to the
prosecution’s failure to make required disclosures
and the state failed to respond to the motion for
leave. McNeal, ––– Ohio St.3d ––––, 2022-Ohio-
2703. The Court remanded with instructions to
grant leave to file a motion for a new trial, without
remanding for a hearing on the motion for leave. Id.
at ¶ 27 (noting the trial court prematurely made
rulings relevant to an unfiled new trial motion).
{¶25} Here, counsel did not file an affidavit, such as
to assert a failure to disclose by the prosecution and
to assure the court he reviewed the discovery, or cite
to the record in support. Additionally, although a
failure to disclose is claimed on appeal, the motion
for leave did not raise an allegation that the state
failed to disclose information. Moreover, the state
responded to the motion for leave in this case, and
the record does not support various contentions
made or implied by Appellant’s motion for leave.
{¶26} The affidavit of Myles attached to Appellant’s
motion for leave said Myles knew Appellant his
whole life and considered him family (calling
Appellant a cousin and calling his father an uncle).
He did not refer to any reason for a delayed
statement. As the state pointed out in responding to
Appellant’s motion for leave, Myles (the shooting
victim) did not testify at trial and his recorded
utterances at the shooting scene were disclosed to
the defense before trial and played for the court trial.
He said he did not know who shot him when asked
multiple times while awaiting the ambulance. Myles
also said this at the line-up interview with the
detective, which was recorded and disclosed to the
defense in discovery.
{¶27} Moreover, a pro se motion filed by Appellant
months before trial emphasized that Myles told the
detective he would not believe Appellant shot him.
The state’s response to the motion for leave pointed
out Appellant did not attempt to secure the
appearance of Myles at trial where information
could have been directly elicited from him. Instead,
trial counsel utilized the detective on cross-
examination to show Myles did not identify
Appellant as the shooter. (Tr. 637-638). It was
known Myles was not asserting Appellant shot him.
The identification of Appellant as the shooter came
from Morris Perry.
{¶28} As for Perry, the assertion on appeal that the
state failed to disclose Perry’s plea agreement is
contradicted by the record. At a February 21, 2017
pretrial, the court was informed Perry was offered a
deal, with the state recommending community
control in exchange for his guilty plea in his drug
case and for his continued cooperation in this case.
The prosecutor pointed out the defense had already
been provided a copy of the plea agreement. It was
also noted that Appellant watched Perry’s video
statement with counsel. Perry subsequently
testified at trial in accordance with his video
statement, and his plea deal was discussed during
testimony. (Tr. 526). Defense cross-examined Perry
on his plea and on his various claims.
{¶29} Perry’s affidavit attached to Appellant’s
motion for leave claimed he had no direct knowledge
of a criminal enterprise involving Appellant, Moorer,
and others and claimed he testified differently
because he was pressured by law enforcement and
provided an “incentive of no prison time in an
unrelated case.” This is not a recantation of the
testimony on Appellant shooting Myles (or why);
however, Appellant believes the affidavit would
affect his conviction of engaging in a pattern of
corrupt activity. Perry merely provided a
generalized statement denying “direct knowledge” of
a “criminal enterprise,” rather than a specific
recantation of pertinent facts. Appellant would
know whether he was a part of a drug ring at the
time he listened to Perry’s statement with his
attorney before trial. It was thus the fact of Perry
potentially being willing to say something different
that Appellant alleges he was unavoidably
prevented from discovering within 120 days of trial.
{¶30} However, as the state reminded the trial court
in responding to Appellant’s motion for leave,
Appellant’s awareness of Perry’s inconsistencies,
including an alleged recantation was already on the
record. A year before trial, the state filed a motion in
limine informing the court the defense provided an
audio recording in discovery wherein Perry (who was
secretly recorded) told an organization member he
lied in his statement to police and would not be
cooperating. The state argued Perry was under
duress and in fear. In addition, months before trial,
Appellant filed a pro se motion to strike Perry’s
testimony, arguing, in part, any testimony
consistent with Perry’s statement to police would be
perjury and claiming the audio should be considered
a recantation; the motion was later renewed by
counsel.
{¶31} Also, Perry’s affidavit makes no reference to
the timing of his newest claim that he lacked direct
knowledge of a criminal enterprise. The burden is on
the petitioner to show by clear and convincing proof
how he was unavoidably prevented from timely
discovering the evidence. Schiebel, 55 Ohio St.3d at
74. Appellant mentions his own incarceration in
claiming he was unavoidably prevented from
discovering the information known by the affiants.
However, the mere fact of incarceration does not
show a movant was unavoidably prevented from
learning facts; even an incarcerated movant must
explain “how he has been prevented from contacting
the affiant.” State v. Moore, 7th Dist. Mahoning No.
13 MA 9, 2014-Ohio-358, ¶ 24.
{¶32} Appellant also relies on the date of the
affidavits and his receipt of them. However, “an
affidavit signed outside the rule’s timeframe does
not necessarily indicate that the petitioner was
unavoidably prevented from obtaining the evidence
or that it is clear and convincing proof.” State v.
Franklin, 7th Dist. Mahoning No. 09 MA 96, 2010-
Ohio-4317, ¶ 19. It is “unreasonable for [the movant]
not to have attempted to contact [the affiant] sooner”
where he knew about the allegedly false testimony
he heard at his own trial. Moore, 7th Dist. No. 13 MA
9 at ¶ 24. Appellant said his mother got a copy of
Perry’s affidavit from an unnamed third party and
Myles contacted his father so his father hired an
investigator to secure an affidavit. Appellant
essentially claims he was unavoidably prevented
from discovering the information because it was not
bestowed upon him earlier. However, “[t]he phrases
‘unavoidably prevented’ and ‘clear and convincing
proof’ do not allow one to claim that evidence was
undiscoverable simply because affidavits were not
obtained sooner.” State v. Fortson, 8th Dist.
Cuyahoga No. 82545, 2003-Ohio-5387, ¶ 11. The
court is “not required to make suppositions about the
reasons for the delay.” Id. at ¶ 12 (where one
affidavit provided no reason for the delay in
recanting testimony and other provided
unconvincing reason).
{¶33} Under the Eighth District case relied on by
Appellant, a hearing on the motion for leave would
not be required, as the documents do not facially
support a claim that he was unavoidably prevented
from timely discovering the evidence upon which his
motion for new trial could rely. See Blalock, 8th Dist.
No. 100194 at ¶ 44. The trial court did not abuse its
discretion in refusing to grant leave to file the new
trial motion and thus denying the untimely new trial
motion filed therewith. Appellant’s assignments of
error are overruled.
{¶34} As a final observation, we also note that even
if leave were granted and the merits of the
submitted new trial motion were reviewed, there
would be no abuse of discretion by the trial court in
denying the motion Appellant decided to submit
with his motion for leave. We rely on our various
observations set forth above as to assertions on
knowledge, ability to know, and timing. The test for
newly discovered evidence for a new trial motion is
not merely “newly available” evidence. State v.
Thomas, 7th Dist. Mahoning No. 18 MA 0132, 2020-
Ohio-3637, ¶ 58 (where the information in the
affidavit is about the defendant’s participation, the
defendant had prior knowledge of the information).
Appellant was convicted at a bench trial by the same
judge who was ruling on the motion. The judge heard
the testimony by Perry at trial as compared to the
generalized affidavit (that did not mention the
shooting or any other facts). The judge was forced to
seal parts of the record and presided through
pretrial issues with a fearful witness being secretly
recorded while claiming he would be recanting. At
trial, Perry even disclosed he previously attempted
to pay a victim to sign a false affidavit for Moorer.
{¶35} Notably, the sixth factor for granting a new
trial (in the case Appellant cites) states, the evidence
must “not merely impeach or contradict the former
evidence.” See Petro, 148 Ohio St. 505 at syllabus.
Appellant omitted the italicized portion from his
analysis below. Moreover, the trial court could
reasonably conclude the affidavit did not disclose a
strong probability the result would be different.
Perry’s prior testimony would be admissible in any
new trial. See Evid.R. 801(D). The trial court could
likewise reasonably conclude Perry’s affidavit did
not provide substantial grounds for relief requiring
an evidentiary hearing on a motion for new trial (if
leave had been granted).
{¶36} As for the affidavit of Myles, his newest
statement was merely cumulative. Appellant’s
motion did not acknowledge that Myles, who was the
shooting victim, did not appear at trial to testify. The
motion provided no explanation as to why Appellant
did not secure his presence at trial or attempt a pre-
trial interview of this life-long family-like friend. At
the bench trial, the judge heard the defense utilize
the detective to demonstrate Myles did not identify
Appellant as the shooter. There was no indication
the information from Myles was not known (or could
not have been discovered before trial in the exercise
of due diligence). See id. Accordingly, any
alternative argument within Appellant’s brief on
entitlement to a new trial is overruled (even if leave
to file a new trial motion should have granted).
Johnson, 2023 WL 2599552, at *5–7. Johnson hasn’t challenged any of the
state court’s findings. He is not entitled to relief on ground one.
2. Ground two is not cognizable, fails on the merits, and a portion is
procedurally defaulted
In ground two, Johnson alleges that he is actually innocent. Doc. 1, at 7.
Respondent argues that Johnson procedurally defaulted this claim because he
failed to present it on direct appeal to the Ohio court of appeals. Doc. 22, at 15.
In his Traverse, Johnson concedes that he didn’t present an “actual innocence”
claim to the state courts, but asserts that “the underlying facts supporting his
actual innocence claim were indeed presented for review to the state courts”
when Johnson filed a motion for leave to file a motion for new trial. Doc. 24, at
4. He also claims that on direct appeal he raised a sufficiency-of-the-evidence
claim, which was good enough to present an actual innocence claim. Id.
Johnson’s actual innocence claim is not cognizable on federal habeas
review. See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007); see Oliver v.
Miniard, No. 24-1857, 2025 U.S. App. LEXIS 9262, at *21–22 (6th Cir. Apr. 17,
2025) (affirming the district court’s rejection of the petitioner’s actual
innocence claim; “a freestanding claim of actual innocence is not cognizable in
a federal habeas proceeding.”).
Even if this Court were to consider Johnson’s freestanding actual
innocence claim, it would fail. To the extent that Johnson relies on the
affidavits he submitted with his motion for leave to file a motion for new trial
to support his claim of actual innocence, Doc. 24, at 4, he hasn’t shown that the
Ohio court of appeals’ rejection of this evidence, reproduced above, was
unreasonable.7
Moreover, to the extent Johnson believes that his actual innocence claim
can be intuited from his direct-appeal, sufficiency-of-the-evidence claim, id. at
4, he is mistaken because “‘actual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
And even if it could be said that Johnson had presented an actual innocence
claim on direct appeal when he raised a sufficiency-of-the-evidence claim, he
procedurally defaulted the claims that he raised to the Ohio court of appeals
on direct appeal because, as explained more fully below, he did not timely
7 The affidavits are as the Ohio court of appeals described them. Myles in
his affidavit stated that he did not tell Detective Patton that Johnson shot him.
Doc. 9-1, at 285–86. Detective Patton at trial said the same thing. See Doc. 9-
3, at 37–38; Johnson, 2023 WL 2599552, at *5. Perry’s sworn signature is on a
separate page—and with typeface that looks different from—the statements
he allegedly swore to. Doc. 9-1, at 987–88; Johnson, 2023 WL 2599552, at *2.
And Perry stated that he “never participated nor had direct knowledge of a
criminal enterprise comprised of” a list of names, including Johnson’s. Doc. 9-
1, at 287; Doc. 11-1. This is a far cry from Perry stating that Johnson was not
the shooter or did not commit acts that gave rise to his convictions. See
Johnson, 2023 WL 2599552, at *6.
appeal to the Ohio Supreme Court and that Court denied his motion for
delayed appeal. See Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (when
the Ohio Supreme Court denies a motion for delayed appeal, it enforces a
procedural bar).
Ground two is not cognizable, fails on the merits, and a perceived portion
of it is procedurally defaulted.
3. Grounds three and four are procedurally defaulted
In ground three, Johnson argues that the trial court erred when it
permitted the State to use at trial text messages that were unauthenticated,
testimonial in nature, and when “[t]he [r]ecipient [o]f [t]hese [m]essages [d]id
[n]ot [t]estify.” Doc. 1, at 8; Doc. 16, at 1. In ground four, Johnson alleges that
the indictment was insufficient because it failed to place him on notice that the
State used federal charges as the predicate acts to establish a pattern of
corrupt activity. Doc. 1, at 10; Doc. 16, at 1. Respondent argues that these
grounds are procedurally defaulted. Doc. 22, at 15–16.
A petitioner must present a claim to the state appellate court and the
state supreme court for discretionary review or it is procedurally defaulted.
O’Sullivan, 526 U.S. at 845. Johnson raised the claims in grounds three and
four on direct appeal to the Ohio court of appeals, Doc. 9-1, at 154, 183–89, but
he did not timely appeal to the Ohio Supreme Court, see S.Ct.Prac.R.
7.01(A)(1)(a)(i) (“[t]o perfect a jurisdictional appeal from a court of appeals to
the Supreme Court … the appellate shall file a notice of appeal in the Supreme
Court within forty-five days from the entry of the judgment being appealed.”)
Instead, more than five years after the Ohio court of appeals’ ruling, Johnson
filed in the Ohio Supreme Court a motion for leave to file a delayed appeal,
Doc. 22-1, at 2, which the Ohio Supreme Court denied, id. at 24. When it did,
it enforced a procedural bar. See Bonilla, 370 F.3d at 497 (when the Ohio
Supreme Court denies a motion for delayed appeal, it enforces a procedural bar
precluding federal habeas review).
Johnson contends that the Ohio Supreme Court did not enforce the
procedural bar against him because its judgment entry doesn’t say that it
denied Johnson’s motion on procedural grounds. Doc. 24, at 5. It is true that
the Ohio Supreme Court’s judgment entry is silent as to its reason for denying
Johnson’s motion. See Doc. 22-1, at 24. But “[w]here a state court is entirely
silent as to its reasons for denying requested relief, we assume that the state
court would have enforced any applicable procedural bar.” Bonilla, 370 F.3d at
497 (citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996)).
To overcome this procedural bar, Johnson must show cause for the
default and actual prejudice that resulted from the alleged violation of federal
law that forms the basis of his challenge. See Coleman, 501 U.S. at 750.
“Cause” means that “some objective factor external to [Johnson’s] defense
impeded his ability to comply with the state’s procedural rule.” See Bies v.
Sheldon, 775 F.3d 386, 396 (6th Cir. 2014) (citing Murray v. Carrier, 477 U.S.
478, 488 (1986)).
Johnson argues that he “wanted to pursue his appeal in the Ohio
Supreme Court,” but “he no longer had legal counsel assisting him.” Doc. 24,
at 5–6. He also states that he has no legal training, he “did not even graduate
from high school,” and that at an unspecified time, he “returned to federal
prison, where all of his legal materials and paperwork were confiscated from
him upon entry” and he “had no reasonable ability or materials to prosecute
an appeal.” Id. at 6. Johnson’s lack of counsel does not constitute cause to
excuse his procedural default because a defendant has no right to counsel for a
discretionary appeal to the Ohio Supreme Court. Wainwright v. Torna, 455
U.S. 586, 587 (1982); see Phillips v. Erdos, No. 3:18-cv-860, 2018 WL 11196506,
at *9 (N.D. Ohio Sep. 25, 2018), report and recommendation adopted, 2020 WL
2124097 (N.D. Ohio May 5, 2020). Johnson’s lack of legal training is not
“external to [his] defense.” See Bonilla, 370 F.3d at 498. Moreover, the record
shows that Johnson regularly filed pro se motions, see, e.g., Doc. 9-1, at 33–39,
120–23, showing that he understood basic legal issues and how to raise them
with the court. See Bonilla, 370 F.3d at 498. Finally, Johnson does not explain
what materials he needed to appeal that he did not have and why he could not
have obtained them sooner than the five years that passed before he filed his
motion for delayed appeal. See id. (“Bonilla’s mistaken belief that he required
a complete copy of his trial transcripts prior to filing a notice of appeal with
the Ohio Supreme Court does not establish cause to excuse his procedural
default”).
And Johnson hasn’t shown actual innocence to overcome the procedural
bar. For the reasons discussed above regarding the affidavits that Johnson
submitted, Johnson has not shown that his is “an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986); see Schlup v.
Delo, 513 U.S. 298, 324 (1995) (a claim of actual innocence “requires the
petitioner to support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial.”).
Conclusion
For the reasons set forth above, I recommend that Johnson’s Petition be
dismissed.
Dated: July 23, 2025
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).