United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
Mark Shoecraft brought this habeas corpus action pro
se pursuant to 28 U.S.C. § 2254 to obtain release
from his conviction in the Common Pleas Court of Montgomery
County, Ohio, on charges of murder, improper discharge of a
firearm, felonious assault, carrying a concealed weapon,
aggravated trafficking in drugs, and having a weapon while
under a disability (Petition, ECF No. 1, PageID 35).
transfer of this case from the Cincinnati location of Court,
the undersigned ordered Respondent to file a Return of Writ
and the State Court Record which was completed October 31,
2019 (ECF No. 7, 8). The Court then reminded Petitioner that
his Reply to the Return was due to be filed by November 21,
2019 (Notice, ECF No. 9). Petitioner's time to reply, as
twice extended, expired on January 2, 2020 (ECF No. 13).
Shoecraft actually waited until January 6, 2020, to file his
Reply (ECF No. 14, PageID 898) and did not obtain a further
extension. Because the Reply was untimely filed, Shoecraft is
not entitled to have it considered by the Court. In the
interest of completeness, however, this Report reflects
consideration of the Reply in the event the District Judge
does not decide to strike it.
was indicted by a Montgomery County grand jury on February
13, 2017, in connection with the fatal shooting of Eric
Raglin on the evening of January 31, 2017 (Indictment, State
Court Record, ECF No. 7, PageID 69-70). Shoecraft waived
trial by jury and the trial judge convicted him on all counts
except for the charge of trafficking in cocaine. After
merging some of the convictions under Ohio Revised Code
§ 2941.25, the trial judge sentenced Shoecraft to an
aggregate sentence of forty years to life imprisonment.
appealed raising five assignments of error, and the Ohio
Second District Court of Appeals affirmed the convictions,
State v. Shoecraft, 2018-Ohio-3920 (Ohio App. 2d
Dist. Sep. 28, 2018). The Second District granted Shoecraft
leave to file a delayed application for reconsideration, but
then denied substantive relief. Shoecraft sought and received
permission to file a delayed appeal to the Supreme Court of
Ohio, but the delayed appeal was dismissed for want of
prosecution. State v. Shoecraft, 156 Ohio St.3d 1411
February 21, 2019, Shoecraft filed an Application for
Reopening under Ohio R. App. P. 26(B), claiming his appellate
attorney was ineffective for failing to claim his trial
attorney was ineffective for not presenting a cultural
expert. The Second District denied reopening and the supreme
court declined appellate jurisdiction. State v.
Shoecraft, 156 Ohio St.3d 1455 (2019).
to that, Shoecraft filed a petition for post-conviction
relief under Ohio Revised Code § 2953.21, which was
denied in August 2019. Petitioner took no appeal, but filed
the instant habeas corpus petition August 19, 2019, pleading
the following grounds for relief:
Ground One: Petitioner did not voluntarily
waive his right to a jury trial in violation of his 5th, 6th,
and 14th Amendment rights.
Supporting Facts: Petitioner submits that
the records establishes [sic] that he did not waive his
rights to a jury trial in a knowing, intelligent, and
voluntary fashion, as petitioner was not sufficiently
appraised [sic] of how his guilt could be decided.
Ground Two: The trial court erred by
rejecting petitioner's affirmative defense of
self-defense and defense of another, violating the 5th &
Supporting Facts: The records establishes
[sic] that, at the time Raglin (victim) attempted to drive
away with the drugs without paying, petitioner and his friend
Glenn were standing along the driver's side of the car,
petitioner argued at trial that he believed he and Glenn were
in danger, and based upon Raglin's actions, petitioner
was legally justified in shooting in self-defense.
Ground Three: The trial court erred in
rejecting voluntary manslaughter an inferior degree of
murder, violating the 5th, 14th, Amendment.
Supporting Facts: Petitioner submits that
there was more than sufficient provocation to bring extreme
stress involved in this case, and it was the trial court
judge's ignorance of petitioner's race and
environment that kept the judge/trier of fact from seeing the
justification in the petitioner's actions.
Ground Four: The trial court committed plain
error in sentencing petitioner on allied offenses.
Ground Five: The petitioner's conviction
on the charge of felonious assault against Ms. Houchins was
against both the sufficiency of the evidence, and against the
manifest weight of the evidence, violating the 5th and 14th
Supporting Facts: Petitioner had absolutely
no intent to harm Ms. Houchins, and there was not testimony
produced that suggested petitioner did, what could have
happened in hind-sight and what did is completely different.
Ground Six: Petitioner was denied effective
assistance of trial counsel in violation of his Sixth
Amendment where counsel failed to request a cultural expert.
Supporting Facts: Because of the cultural
differences between the judge and the parties involved,
counsel was required to bring forth a witness in mitigation
of sentence, and to aid the defense in establishing why
petitioner felt threatened enough to shoot when a white
surbanian [sic] might not.
(Petition, ECF No. 4, PageID 39-45.)
One: Involuntary Waiver of Jury Trial
First Ground for Relief, Shoecraft claims his waiver of trial
by jury was involuntary “because petitioner was not
sufficiently appraised [sic] of how his guilt could be
decided.” Shoecraft raised this as his first assignment
of error on direct appeal and the Second District decided it
on the merits, concluding that the requirements for a valid
jury waiver contained in Ohio Revised Code § 2945.05 and
Ohio R. Crim. P. 23(A) were satisfied.
argued his first assignment of error under both Ohio and
federal law, specifically citing the Sixth Amendment to the
United States Constitution and United States v.
Martin, 704 F.2d 267 (6th Cir. 1983). The
aspects of trial by jury of which he claims he was not
sufficiently apprised are that with a trial by a jury, his
guilt or innocence would be determined by twelve jurors who
would have to decide unanimously that he was guilty, and that
he could participate in the jury selection process
(Appellant's Brief, State Court Record, ECF No. 7, PageID
115). He admits he was told that all issues in the case would
be tried and decided by a judge. Id.
state court decides on the merits a federal constitutional
claim later presented to a federal habeas court, the federal
court must defer to the state court decision unless that
decision is contrary to or an objectively unreasonable
application of clearly established precedent of the United
States Supreme Court. 28 U.S.C. § 2254(d)(1);
Harrington v. Richter, 562 U.S. 86, 100 (2011);
Brown v. Payton, 544 U.S. 133, 140 (2005); Bell
v. Cone, 535 U.S. 685, 693-94 (2002); Williams
(Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference
is also due under 28 U.S.C. § 2254(d)(2) unless the
state court decision was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceedings. Although the Second District
discussed this assignment of error in terms of the relevant
Ohio statute and criminal rule, the federal question was
presented to them and their opinion should be read to have
decided that question.
court decision can constitute an “adjudication on the
merits” entitled to deference under 28 U.S.C. §
2254(d)(1) even if the state court does not explicitly refer
to the federal claim or to relevant federal case law. In