Brown v. Tibbals

Filing 14

Order. The Magistrate Judges Report and Recommendation (Doc. 10) is adopted as the Order of this Court; and petition dismissed. I decline to grant a Certificate of Appealability, as the petitioner did not make a substantial showing of the denial of a constitutional right. Judge James G. Carr on 1/22/2015. (G,D)

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

Christopher Lamar Brown,

Case No. 1:13CV906

Petitioner
v.

ORDER

Terry Tibbals, Warden,
Respondent

This is a § 2254 habeas corpus proceeding in which the petitioner, convicted of murder in
Richland County, Ohio, Court of Common Pleas, challenges his conviction on a single ground: that
the denial of a pretrial motion for funds to pay an eyewitness expert violated his federal
constitutional rights to a fair trial.1 Pending are petitioner’s objections to the Magistrate Judge’s
Report and Recommendation recommending denial of the petition. (Doc. 10).
For the reasons that follow, and on the basis of a de novo review, I find the Report and
Recommendation well-taken in all respects, adopt it as the Order of this Court, and dismiss the
petition. I decline to issue a Certificate of Appealability.
Background
The evidence at trial, which came principally from eyewitnesses, was clearly sufficient to
enable the jury to find the petitioner guilty of murdering the victim. One eyewitness had seen the

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Petitioner has adequately preserved his sole ground for relief, which was one of three
assignments of error he asserted in the state Court of Appeals, and was the only ground for his
unsuccessful effort to have the Ohio Supreme Court hear his case.

two arguing earlier in the evening, and, during the argument, the petitioner referred to having his
“strap” (gun) with him when he came down to Mansfield.
Somewhat later, a daughter of that eyewitness was on the front porch smoking a cigarette.
She heard the petitioner and victim – with both of whom she was acquainted as schoolmates –
arguing. She saw the petitioner pull a gun and shoot the victim, who fell down. She then saw him
shoot the victim three more times. She could see the petitioner’s face by the light of a street lamp
as he bent over the victim while shooting him again. The petitioner ran down an alley.
A nearby police officer saw two African-Americans (one darker, the other lighter in
complexion – the petitioner being known as Ebony, the victim as Ivory) arguing. He heard one say,
“Shut the fuck up, nigger, I’ll kill you.” He heard shots and saw the lighter complected man (the
victim), fall to the ground. The man with the darker complexion ran away to the north.
A police tracking dog led officers to the petitioner’s house. While there, they observed a tan
Blazer belonging to petitioner’s mother. After the first eyewitness heard the earlier argument, she
had seen the petitioner driving a tan Blazer. She and her daughter, who had witnessed the shooting,
both told officers that petitioner shot the victim.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254,
governs this case. Under AEDPA, a petitioner, to prevail on a § 2254 petition must show the
conviction either: 1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law; or 2) was based on an unreasonable determination
of the facts in light of the evidence.
Petitioner establish neither ground.

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I have already determined, as did the Magistrate Judge, that the evidence clearly supported
the finding of guilt – there was nothing at all unreasonable about the factual determinations at trial.
As the Magistrate Judge pointed out, petitioner has failed to cite any case to support his
contention that denial of his pretrial motion for fees to obtain an eyewitness expert somehow
violated clearly established state law. Indeed, to the extent that authority exists, it is to the contrary.
Thus, when the Sixth Circuit encountered a similar argument relating to the denial of expert
eyewitness testimony, the Sixth Circuit held in Moore v. Tate, 882 F.2d 1107, 1109 (6th Cir. 1989),
that the state trial court had not erred. This was so because, as here, defense counsel subjected the
eyewitnesses to extensive cross-examination. As a result, both judge and jury had ample opportunity
to assess the reliability of their testimony.
The court in Moore found no constitutional violation in refusing to allow the jury to hear an
expert. The Magistrate Judge found no constitutional violation in the trial court’s denial of a request
for funds to try to find and hire and expert and obtain testimony that was – in light of the evidence
and the decision in Moore – simply not needed to protect the petitioner’s federal constitutional
rights.
Conclusion
It is, therefore,
ORDERED THAT:
1.

The Magistrate Judge’s Report and Recommendation (Doc. 10) be, and the same
hereby is adopted as the Order of this Court; and

2.

The petition be dismissed.

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I decline to grant a Certificate of Appealability, as the petitioner did not make a substantial
showing of the denial of a constitutional right.
So ordered.
/s/ James G.Carr
Sr. U.S. District Judge

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