Whether the Sixth Amendment right to effective assistance of counsel requires reversal of a murder conviction where trial counsel allegedly failed to request jury instructions on accident and voluntary manslaughter

No question identified. : Case: 24-3766 Document: 7-1 Filed: 01/23/2025 Page: 1 (1 of 6) No. 24-3766 f FILED UNITED STATES COURT OF APPEALS eu1y | STEPHENS, Clerk MARKEISHA ELLIOTT, ) ; v. ORDER WARDEN, DAYTON CORRECTIONAL : INSTITUTION, ) Before: GIBBONS, Circuit Judge. Markeisha Elliott, a pro se Ohio prisoner, appeals a district court’s judgment denying her 28 U.S.C. § 2254 petition for a writ of habeas corpus. She has applied for a certificate of appealability (COA) and moves to proceed in forma pauperis (IFP) on appeal. See Fed. R. App. P. 22(b), 24(a)(5). As discussed below, we deny her COA application and IFP motion. Video footage of a pre-arranged street fight between Elliott’s sister Tyshara Walker and Shawnice Johnson revealed that Elliott advanced over to where her sister and Ms. Johnson wrestled on the ground. She approached the two with a small, pointed object in hand, which Ms. Elliott later acknowledged was a knife. Ms. Elliott then bent over and made a thrusting movement with the hand holding the knife in the direction of Ms. Johnson. In the wake of that blow, Ms. Johnson stumbled to her feet, clutching herneck. The crowd quickly dispersed as the severity of Ms. Johnson’s wounds became apparent. Though rushed to the hospital, the knife had punctured Ms. Johnson’s left carotid artery; she eventually lost consciousness and later died. State v. Elliott, No. C-180294, 2019 WL 4231225, at *1 (Ohio Ct. App. Sept. 6, 2019), perm. app. denied, 137 N.E.3d 1209 (Ohio 2020). At trial, defense counsel attempted to establish that Elliott acted in defense of her sister, while Elliott also testified that the stabbing was an accident. See id. Case: 24-3766 Document: 7-1 Filed: 01/23/2025 Page: 2 No. 24-3766 -2at *1-2. Dismissing both possibilities, the jury convicted Elliott of murder (special felony), in violation of Ohio Revised Code § 2903.02(B), and two counts of felonious assault, in violation of Ohio Revised Code § 2903.11(A)(1). The trial court merged the assault counts with the murder count for purposes of sentencing and imposed a prison term of 15 years to life. The Ohio Court of Appeals affirmed, rejecting Elliott’s claim that trial counsel rendered ineffective assistance by pursuing a defense-of-another theory instead of an accident theory. Jd. at *3. In 2019, Elliott filed an application to reopen her appeal, asserting that appellate counsel rendered ineffective assistance by failing to raise additional claims of ineffective assistance of trial counsel and a claim that Elliott’s felony murder conviction was against the manifest weight of the evidence. See Ohio. R. App. 26(B). The Ohio Court of Appeals denied the application on the merits in 2020. Elliott next filed a petition for post-conviction relief, which the trial court denied as untimely. In 2021, Elliott filed her § 2254 petition asserting that: (1) trial counsel rendered ineffective assistance by not (a) objecting to the lack of a jury instruction on accident and (b) informing the jury that the State had the burden of proving that Johnson’s injury was not caused by an accident; (2) her convictions were against the manifest weight of the evidence because the greater weight of the evidence showed that she was acting in defense of another; (4) [sic] trial counsel rendered ineffective assistance by failing to (a) request a jury instruction on manslaughter or voluntary manslaughter, (b) object to the nearly all-white jury venire, and (c) challenge the certification of non-disclosure of witnesses and evidence; and (5) appellate counsel rendered ineffective assistance by failing to (a) transmit all transcripts to the Ohio Court of Appeals and (b) inform her of decisions and ask if he could continue to exhaust her state remedies. A magistrate judge recommended denying Elliott’s first and fifth grounds on the merits,! her second as non-cognizable, and her fourth as procedurally defaulted. (Elliatt’s petition did not include a ground three.) ' Based on documents s