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Stojetz v. Ishee

United States Court of Appeals, Sixth Circuit

June 5, 2018

John C. Stojetz, Petitioner-Appellant,
v.
Todd Ishee, Warden, Respondent-Appellee.

          Argued: October 10, 2017

          Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:04-cv-00263-Gregory L. Frost, District Judge.

         ARGUED:

          Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellant.

          Jocelyn K. Lowe, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee.

         ON BRIEF:

          Mark R. DeVan, BERKMAN, GORDON, MURRAY & DEVAN, Cleveland, Ohio, Laurence E. Komp, Manchester, Missouri, for Appellant.

          Jocelyn K. Lowe, Thomas Madden, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee.

          Before: BOGGS, CLAY, and KETHLEDGE, Circuit Judges.

          OPINION

          BOGGS, Circuit Judge.

          On April 25, 1996, while incarcerated at Madison Correctional Institution, John C. Stojetz and five other inmates stormed a unit housing the State's juvenile offenders. State v. Stojetz, 705 N.E.2d 329, 333-34 (Ohio 1999). After overpowering the guard, Stojetz and the others proceeded to the cell of 17-year-old Damico Watkins, with whom they had had prior altercations, and attacked him. Ibid. While Watkins escaped the initial assault, he was hunted throughout the multi-level complex, cornered, and stabbed to death by Stojetz and another inmate while he pleaded for his life. Ibid. Evidence submitted at trial indicated that Stojetz and his accomplices-who were members of the Aryan Brotherhood-killed Watkins, who was black, due in part to his race. Ibid.

         Stojetz was subsequently charged with one count of aggravated murder with prior calculation and design and with a death-penalty specification, namely, committing aggravated murder while a prisoner in a detention facility. Ibid. A jury found Stojetz guilty of the charge and the specification, and the trial court accepted its death-sentence recommendation. Ibid. Having exhausted his state-court appeals, Stojetz now brings this habeas corpus petition. The district court denied the petition, and for the following reasons, we affirm.

         I

         A On direct review, the Supreme Court of Ohio summarized the events surrounding Watkins's death:

On April 25, 1996, appellant, John C. Stojetz, Jr., along with five other adult inmates, ran across the prison yard of Madison Correctional Institution and toward the Adams Alpha Unit ("Adams A"), which houses many of the state's juvenile offenders who had been tried as adults and convicted of criminal offenses. Appellant and the other five inmates were each armed with knives commonly known as "shanks." Appellant and the others entered the Adams A unit, circled the control desk, and held corrections officer Michael C. Browning at knifepoint. Appellant then placed a shank to Browning's throat and ordered him to give appellant the keys that opened the cell doors of the Adams A unit. Browning threw the keys down and was allowed to flee the unit.
Corrections officers immediately responded to Browning's "man down" alarm and converged on Adams A. Officers were able to observe appellant and the other five inmates carrying shanks. The corrections officers, armed only with pepper mace, attempted to enter Adams A. However, appellant and the other inmates, wielding shanks, prevented the officers from entering.
Once inside Adams A, appellant and his accomplices proceeded to cell number 144, the cell of Damico Watkins, a seventeen-year-old juvenile inmate. Using the keys taken from Browning, appellant unlocked Watkins's cell and appellant and the other adult inmates entered the cell and began attacking Watkins. After eluding the initial attack and escaping from his cell, Watkins was pursued throughout the Adams A unit and repeatedly stabbed by appellant and the other shank-wielding inmates. Watkins was able to escape his attackers several times only to be again cornered and subjected to repeated stabbings. Eventually, Watkins was cornered by appellant on the second floor of the Adams A unit. As Watkins pleaded for his life, appellant and inmate Bishop repeatedly stabbed Watkins and left him for dead.
During the attack on Watkins, correction officers had surrounded the exterior of the Adams A unit. Deputy Warden Mark Saunders arrived on the scene and began conversing with the inmates who had taken over Adams A. During this conversation, inmate Lovejoy stated that "they [the inmates who had taken over Adams A] would not cell with black inmates." Also during the conversation, appellant stated, "we took care of things because you [prison officials] wouldn't."
Subsequently, the inmates were ordered to surrender. The prison yard was cleared and appellant and the five perpetrators passed their shanks through a window in the foyer of Adams A. Once prison officials retrieved the weapons, appellant and the other adult inmates exited the Adams A unit and surrendered to prison authorities.
After prison authorities regained control of the Adams A unit, the coroner arrived at the scene and declared Watkins dead.

Ibid. (alterations in original).

         In October 1996, a Madison County, Ohio grand jury indicted Stojetz for purposely causing the death of Watkins with prior calculation and design, in violation of O.R.C. § 2903.01, and for the death-penalty specification of committing aggravated murder while a prisoner in a detention facility. Ibid. At trial, prosecutors introduced evidence indicating that Stojetz "was known to be the head of the 'Aryan Brotherhood' gang at the Madison Correctional Institution[, ]" that he "and other members of the Aryan Brotherhood did not want to be housed in the same cells as black inmates[, ]" and that he "and members of the Aryan Brotherhood wanted to be transferred from Madison Correctional to other penal institutions." Ibid. For instance, a subsequent search of the attackers' prison cells showed that they had already packed their belongings, ibid., presumably in anticipation of a transfer. On April 8, 1997, the jury convicted Stojetz of aggravated murder while a prisoner in a detention facility. Nine days later, on April

          17, it recommended a death sentence, which the trial court imposed. During the intervening decades, Stojetz has filed numerous appeals and motions, changed attorneys on multiple occasions, and raised an extraordinary number of claims.

         Represented by new counsel on direct appeal, Stojetz asserted nineteen "propositions of law" for relief, nine of which are relevant here:

PROPOSITION OF LAW NO. I
During jury selection in a capital case, the trial court must ask each prospective sentencing juror whether the juror's views on the death penalty would prevent or substantially impair the juror's ability to consider a life sentence if the defendant is found guilty of aggravated murder and the aggravating circumstance. Life qualification of each prospective juror is required whenever the trial court death qualifies the jurors by asking them if their views on the death penalty would prevent or substantially impair their ability to consider the death penalty in the case before them.
PROPOSITION OF LAW NO. II
John Stojetz's death sentence is inappropriate. Damico Watkins['s] death resulted from his own threats against Stojetz and Stojetz's post-traumatic stress disorder.
PROPOSITION OF LAW NO. III
When trial counsel fail to conduct an adequate voir dire, fail to object to inadmissible evidence, fail to request a separation of witnesses, fail to conduct an adequate investigation of the case, fail to object to victim impact evidence, present a confusing explanation of the mitigation weighing process, fail to adequately present evidence of a capital defendant's post-traumatic stress disorder, and fail to adequately prepare defendant's mitigation expert, a capital defendant is deprived of the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10 and 16 of the Ohio Constitution.
PROPOSITION OF LAW NO. IV
A capital defendant is denied his rights to a jury verdict, to a fair trial, to due process, to the effective assistance of counsel, and to a reliable and non[-]arbitrary death sentence when the jury returns a general verdict of guilty for aggravated murder without a unanimous finding that the defendant was either the principal offender or an aider and abettor. U.S. Const. Amend. VI, VIII, XIV; Ohio Const. Art. I, §§ 5, 9, 10, 16.
PROPOSITION OF LAW NO. V
The defendant who is death-eligible as either a principal offender or aider and abettor must have access to the grand jury's testimony [sic] when there are five co-defendants and the defendant shows a particularized need for their testimony. U.S. Const. Amend. XIV; Ohio Const. Art. I, § 16.
. . .
PROPOSITION OF LAW NO. VIII
Appellant's right to due process is violated when the trial court admits improper testimony in violation of the Fourteenth Amendment to the United States Constitution and § 16, Article I, of the Ohio Constitution.
. . .
PROPOSITION OF LAW NO. XI
When prosecutors misrepresent witness testimony, argue victim impact evidence unrelated to the offense, deny a defendant individualized sentencing, mislead on the definition of mitigation, and shift the burden of proof to the defendant, a capital defendant is denied his substantive and procedural due process rights to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 1, 9, 16, and 20 of the Ohio Constitution. He is also denied his right to reliable sentencing as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 16 of the Ohio Constitution.
PROPOSITION OF LAW NO. XII
A jury instruction that shifts the burden of proof on the mens rea element of aggravated murder to the accused is unconstitutional. U.S. Const. Amend. XIV; Ohio Const., Art. I, § 16. A jury instruction that makes the accused's guilt or innocence the ultimate issue of fact is also unconstitutional. U.S. Const. Amend. XIV; Ohio Const., Art. I, § 16.
. . .
PROPOSITION OF LAW NO. XVI
When the trial court considers public policy matters, treats an institutional killing as requiring a mandatory death sentence, fails to weigh relevant mitigating evidence, and uses inappropriate standards in weighing proper mitigating evidence, a capital defendant is deprived of the right to individualized sentencing and of his liberty interest in the statutory sentencing scheme thus violating rights guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and §§ 9 and 16, Article I, of the Ohio Constitution.

Id. at 347-48 (alterations in original). On February 17, 1999, after a careful review of the record, the Supreme Court of Ohio affirmed Stojetz's conviction and sentence. Id. at 335. Two weeks later, Stojetz filed a motion for reconsideration with the Supreme Court of Ohio, in which he re-raised the first, third, and fifteenth propositions of law. On April 7, 1999, his motion was denied. State v. Stojetz, 708 N.E.2d 212 (Table) (Ohio 1999).

         With the assistance of yet different counsel-by now, John J. Gideon represented the Appellant-Stojetz next filed an application to reopen his direct appeal on the grounds that appellate counsel had been constitutionally ineffective. Specifically, Stojetz alleged that counsel had been ineffective because they had not included the following propositions of law in the appellate brief:

PROPOSITION OF LAW NO. I
Trial counsel render[ed] ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to the admission of the hearsay testimony of a corrections officer that juvenile inmates were yelling from their cells that the defendant was a murderer.
PROPOSITION OF LAW NO. II
Trial counsel render[ed] ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to prosecutorial misconduct: (i) in misrepresenting testimony in trial phase closing argument; (ii) in drawing extraneous comparisons between the defendant and others and arguing public policy during sentencing phase closing argument; (iii) in misleading the jury on the definition of "mitigation" during sentencing phase closing argument; and (iv) in shifting the burden of proof to the defendant during sentencing phase closing argument.
PROPOSITION OF LAW NO. III
Trial counsel render[ed] ineffective assistance of counsel under the Sixth Amendment to the United States Constitution by failing to object to the admission of a crime scene videotape and for failing to object to the replaying of the videotape during trial phase deliberations.

         While this application was pending, Stojetz also filed a petition with the Supreme Court of the United States for a writ of certiorari to the Supreme Court of Ohio regarding its denial of his direct appeal.

          On August 18, 1999, the Supreme Court of Ohio denied Stojetz's application to reopen his direct appeal. 714 N.E.2d 932 (Table) (Ohio 1999). Nearly three months later, on November 8, 1999, the Supreme Court of the United States denied Stojetz's petition for a writ of certiorari. Stojetz v. Ohio, 528 U.S. 999 (1999).

         B

         i. Petition for Postconviction Relief

         In March 1998, while Stojetz's direct appeal was pending, attorney Gideon also filed a petition for postconviction relief. Initially, Stojetz listed six grounds for relief, but he amended the petition five times to raise the total to eleven:

First Ground for Relief
Actual Innocence.
Second Ground for Relief
Ineffective Assistance of Counsel with Respect to Pretrial Publicity.
Third Ground for Relief
Ineffective Assistance of Counsel with Respect to Trial Publicity.
Fourth Ground for Relief
Ineffective Assistance of Counsel in Failing to Investigate and Present a Defense.
Fifth Ground for Relief
Ineffective Assistance [of Counsel] in Failing to Call Witnesses.
Sixth Ground for Relief
Withholding of Evidence.
Seventh Ground for Relief
Denial of Petitioner's Right to Testify.
Eighth Ground for Relief
Ineffective Assistance of Counsel for Failing to Advise Petitioner of His Right to Testify and for Failing to Call Petitioner to Testify.
Ninth Ground for Relief
Ineffective Assistance of Counsel for Failing to Present Evidence to Rebut Prosecution Attempt to Portray Incident as Racist.
Tenth Ground for Relief
Ineffective Assistance of Counsel for Failing to Present Mitigating Evidence that the Victim Induced the Offense and that Petitioner Was Provoked.
Eleventh Ground for Relief
Ineffective Assistance of Counsel for Failing to Move for a ...

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