Withrow v. Moore

Filing 15

Order Adopting Report and Recommendation re 8 . Withrow's objection (Doc. 11 ) overruled. Magistrate Judges Report and Recommendation 17 adopted as order of the court. Withrow's petition for writ of habeas corpus ( 1 ) denied. No certificate of appealability will issue, as Withrow has not mad a substantial showing of the denial of a constitutional right. Judge James G. Carr on 2/5/2016. (Attachments: # 1 Report & Recommendation)(G,D)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHRISTOPHER WITHROW,
Petitioner,
v.
ERNIE MOORE, Warden,
Respondent.

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CASE NO. 1:14 CV 1079
JUDGE JAMES G. CARR
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

REPORT & RECOMMENDATION

Introduction
Before me1 is the petition of Christopher Withrow, proceeding pro se, for a writ of
habeas corpus under 28 U.S.C. § 2254.2 Withrow was convicted by an Ashtabula County
Court of Common Pleas jury in 2011 and was found guilty of one count of aggravated
murder, two counts of murder, and two counts of aggravated robbery.3 Withrow is serving
a life sentence with the possibility of parole after 30 years.4 He is currently incarcerated at
the Trumbull Correctional Institution in Leavittsburg, Ohio.5
1

This matter was referred to me under Local Rule 72.2 by United States District Judge
James G. Carr by non-document order dated June 19, 2014.
2

ECF # 1.

3

ECF # 6-18, at 2189-91.

4

ECF # 6-19, at 2376.

5

Withrow’s current location, according to the Department of Correction’s “Offender
Search,” at http://www.drc.ohio.gov/OffenderSearch/details.aspx?id=A604923 is Trumbull
County Correctional Institution. However, Withrow indicated that he filed his writ while
detained at the Lebanon Correctional Institution, Warren County, Ohio as seen at ECF # 1.

Withrow raises three grounds for habeas relief.6 The State has filed a return of the writ
arguing that the petition should be dismissed in part on the first two grounds as procedurally
defaulted. The State argues that the remaining ground should be denied as it fails on the
merits.7 Withrow has filed a traverse.8
For the reasons that follow, I will recommend Withrow’s petition be dismissed in part
in respect to the first two grounds and denied in part on the final ground.

Facts
A.

Factual Background
The facts that follow are a summary of the facts found in the decision of the state

appeals court.9
The case against Withrow arises out of the death of William Post, who was murdered
on Christmas Day in 2009.10

Further, in respondent’s return of writ, Withrow is indicated as being detained in Lorain
Correctional Institution in Grafton, Lorain County, Ohio, as seen at ECF # 5. Regardless of
these inconsistencies, it appears that Withrow was detained at the time of filing his petition.
6

ECF # 1, at 2.

7

ECF # 5, at 12, 13.

8

ECF # 7.

9

Facts found by the state appellate court on its review of the record are presumed
correct by the federal habeas court. 28 U.S.C. § 2254(e)(1); Mason v. Mitchell, 320 F.3d 604,
614 (6th Cir. 2003) (citing Sumner v. Mata, 449 U.S. 539, 546-47 (1981)).
10

ECF # 6-1, at 1.
-2-

In the early morning, on December 25, 2009, Christopher Withrow, Darlene Lister,
Keri Dennison, and Joel Schick were using crack-cocaine.11 The group ran out of drugs, at
which time Withrow contacted the victim William Post in order to arrange a sex-for-money
exchange between Lister and Post.12 Post agreed and spent a few hours with Lister.13 Lister
was eventually picked up by Withrow at which time Lister indicated that Post had more
money that he refused to give her.14
After dropping Lister off, Schick and Withrow returned to Post’s apartment.15
Withrow entered Post’s apartment and upon leaving, informed Schick that he had “killed the
guy inside.”16 The pair left the area.17
Sometime later, Withrow asked Schick for help cleaning up Post’s apartment, which
Schick refused to do.18 Withrow headed back to Post’s apartment alone, at which time he was
spotted by three witnesses, two of which later identified him through a photo array analysis.19

11

Id., at 2.

12

Id.

13

Id.

14

Id.

15

Id.

16

Id., at 3.

17

Id.

18

Id.

19

Id.
-3-

After the discovery of Post’s body, investigators were lead to Withrow who lied
several times about his interactions with Post.20 After further questioning, investigators were
lead to Withrow’s girlfriend’s residence where they found Withrow’s wet clothing with what
appeared to be blood stain spattering on them.21
After the investigation, the state filed an indictment in September, 2011, charging
Withrow with two counts of murder, two counts of aggravated murder, and two counts of
aggravated robbery.22 Withrow pleaded not guilty to all charges and filed a motion to
suppress the photo identification from two witnesses, alleging that the array of photos used
was impermissibly suggestive.23 Withrow’s motion was overruled by the state trial court.24
The case was tried to a jury in September, 2011, and Withrow was found guilty of one count
of aggravated murder, two counts of murder, and two counts of aggravated robbery; the
parties agreed that these charges should be merged for ease of sentencing.25 Withrow was
sentenced to life in prison with the possibility of parole after 30 years.26

20

Id., at 4, 5, 6.

21

Id., at 6.

22

Id.

23

Id.

24

ECF # 6-6, at 125.

25

ECF # 6-1, at 6.

26

Id.
-4-

B.

Direct Appeal

1.

Ohio Court of Appeals
Withrow, through counsel other than his counsel at trial,27 filed a timely28 notice of

appeal29 with the Ohio Court of Appeals. In his brief, Withrow filed three assignments of
error:
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED IN NOT
SUPPRESSING THE PRETRIAL IDENTIFICATION OF APPELLANT.30
SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRERED
[sic] IN ALLOWING A MEMBER OF LAW ENFORCEMENT TO
RENDER HIS OPINION OF APPELLANT’S TRUTHFULNESS.31
THIRD ASSIGNMENT OF ERROR: THE VERDICT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND THE SUFFICIENCY OF
THE EVIDENCE.32

27

ECF # 6-22. Withrow acquired new counsel for this appeal, Michael A. Hiener.
Counsel on behalf of Withrow at trial was made up of Marie Lane and Dean Topalof. ECF
# 6-11, at 249.
28

Under Ohio App. Rule 4(A), to be timely, a party must file a notice of appeal within
30 days of the judgment being appealed. See also, Smith v. Konteh, No. 3:04CV7456, 2007
WL 171978, at *2 (N.D. Ohio Jan. 18, 2007). Withrow’s conviction and sentence were
journalized on September 29, 2011 (ECF # 6-19), and the notice of appeal was filed on
October 25, 2011 (ECF # 6-20). Thus, the appeal is timely.
29

ECF # 6-20.

30

ECF # 6-22, at 2430.

31

Id., at 2437.

32

Id., at 2441.
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The State filed a brief in response.33 On October 22, 2012, the Ohio appeals court overruled
all three assignment of error and affirmed the decision of the trial court.34
2.

The Supreme Court of Ohio
Withrow, through new counsel,35 thereupon filed what appears to be a timely36 notice

of appeal with the Supreme Court of Ohio.37 In his brief in support of jurisdiction, he raised
one proposition of law:
PROPOSITION OF LAW NO.1: Appellate counsel provided ineffective
assistance.38

33

ECF # 6-23.

34

ECF # 6-1, at 1.

35

Withrow acquired new counsel for this appeal, Rick L. Ferrara. ECF # 6-26, at

2526.
36

Subject to the discussion herein, Withrow appears to have filed in a timely manner.
To be timely under Ohio Supreme Court Rule of Practice 2.2(A)(1)(a), a notice of appeal
must be filed within 45 days of entry of the appellate judgment for which review is sought.
See also, Applegarth v. Warden, 377 F. App’x 448, 450 (6th Cir. 2010). As noted, the Ohio
appellate decision was entered on October 22, 2012, and, after our review, the appeal with
the Ohio Supreme Court was mailed on December 5, 2012, and filed on December 8, 2012
(ECF # 6-26 at 2526, 2527). This view leads to a 47-day difference in the time from the
appellate court decision to the filing of Withrow’s notice of appeal to the Ohio Supreme
Court. The State indicates in their response to the writ that Withrow filed on December 6,
2012 (ECF # 5 at 29). The Ohio Supreme Court declined jurisdiction under S. Ct. Prac. R.
7.08(B)(4), which involves denial due to lack of a substantial constitutional question rather
than a timeliness issue (ECF # 6-29). If the Ohio Supreme Court did not engage in some form
of waiver in this regard, they have constructively waived the deadline by declining
jurisdiction under the grounds stated above.
37

Id.

38

ECF # 6-27, at 2535.
-6-

This proposition contained four sub-propositions:
a.

The Trial Court Failed to Suppress Identification Testimony Under
Pre-Statutory Standards.39

b.

The Trial Court Abused Its Discretion in Granting Improper For-Cause
Challenges Against Two Petit Jurors.40

c.

The State Committed Prosecutorial Misconduct by Indoctrinating
Statements During Voir Dire and Opening Arguments.41

d.

The Trial Court Prejudiced Appellant By Not Allowing Juror Notes.42

After the State filed a response,43 The Supreme Court of Ohio declined jurisdiction on
February 20, 2013.44
C.

Rule 26(B) motion

1.

Court of Appeals
While his direct appeal was pending in the Supreme Court of Ohio, Withrow, through

the same counsel who filed his appeal to the Supreme Court of Ohio, filed a Rule 26(B)
application to reopen direct appeal.45

39

Id.

40

Id., at 2538.

41

Id., at 2540.

42

Id., at 2542.

43

ECF # 6-28.

44

ECF # 6-29.

45

ECF # 6-30.
-7-

In the application to reopen, Withrow proffered the same ground as argued on direct
appeal to the Supreme Court of Ohio, which was ineffective assistance of appellate counsel,
but with the added sub-issue that former appellate counsel, during the first appeal to the
appellate court, did not properly argue the manifest weight and sufficiency of the evidence
assignment of error on appeal.46
After the State filed a response,47 the court of appeals denied this application to reopen
on February 8, 2013.48
2.

Supreme Court of Ohio
Withrow, through the same counsel, filed an appeal from the appellate court’s

decision to deny his application to reopen direct appeal on March 25, 2013.49 In his brief in
support of jurisdiction, he raised one proposition of law:
PROPOSITION OF LAW NO. 1: Ohio’s Eleventh District Court of Appeals
Should Have Granted Appellant’s App.R. 26(B) Application to Reopen his
Appeal.50

46

Id., at 2587.

47

ECF # 6-31.

48

ECF # 6-32, at 2623.

49

ECF # 6-34.

50

ECF # 6-35, at 2636.
-8-

After the State filed a response,51 the Supreme Court of Ohio declined jurisdiction on June 5,
2013.52
D.

Petition for writ of habeas corpus
On April 28, 2014, Withrow, pro se, timely filed53 a federal petition for habeas relief.54

As noted above, he raises three grounds of relief, ground three containing pertinent
subclaims:
GROUND ONE: The state failed to present sufficient evidence to sustain a
conviction.55
GROUND TWO: The petitioner’s right to due process was violated when the
trial court applied improper standard to identification testimony.56
GROUND THREE: The petitioner received ineffective assistance of appellate
counsel for failing to raise meritorious issues on appeal.57
Supporting facts: Appellate counsel failed to raise or effectively argue the
following issues which a reasonably competent attorney would have raised:

51

ECF # 6-36.

52

ECF # 6-37.

53

The present petition for federal habeas relief was filed on April 28, 2014. ECF # 1
at 13. The petition was filed within one year of the conclusion of Withrow’s motion to reopen
direct appeal in the Ohio courts and so it is timely under 28 U.S.C. § 2254(d)(1); Bronaugh
v. Ohio, 235 F. 3d 280, 283-84 (6th Cir. 2000). Withrow’s 90 days to file for a writ of
certiorari were included in this calculation. Withrow did not file for a writ of certiorari.
54

ECF # 1.

55

Id. at 5.

56

Id. at 6.

57

Id. at 8.
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failure to suppress I.D. standards under pre-statutory standard; failure to argue
improper dismissal of two jurors; prosecutorial misconduct, refusal of trial ct
[sic] to allow jurors to take notes; failed to submit an argument to support
manifest weight issue.58

Analysis
A.

Preliminary observations
Before proceeding further, I make the following preliminary observations:
1.

There is no dispute that Withrow is currently in state custody as the
result of his conviction and sentence by an Ohio court, and that he was
incarcerated at the time he filed the petition.59 Thus, he meets the “in
custody” requirement of the federal habeas statute vesting this Court
with jurisdiction over the petition.60

2.

There is also no dispute, as detailed above, that this petition was timely
filed under the applicable statute, subject to the discussion in footnote
35.61

3.

In addition, Withrow states,62 and my own review of the docket of this
Court confirms, that this is not a second or successive petition for
federal habeas relief as to this conviction and sentence.63

58

ECF # 1, at 8.

59

Subject to the discussion in footnote 5.

60

28 U.S.C. § 2254(a); Ward v. Knoblock, 738 F.2d 134, 138 (6th Cir. 1984).

61

28 U.S.C. § 2254(d)(1); Bronaugh, 235 F.3d at 283-84.

62

See, ECF # 1 at 5, 7, 8. Although Withrow selects yes to the question of “Did you
raise this issue through a post-conviction motion or petition for habeas corpus in state trial?”
in ECF # 1 at 8, it appears that he is referencing his Rule 26(B) application to reopen direct
appeal rather than a petition for a writ of habeas corpus.
63

28 U.S.C. § 2254(b); In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006).
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4.

Moreover, subject to the procedural default discussion below, and
subject to the fair presentment argument raised by the State, these
claims have been totally exhausted in Ohio courts by virtue of having
been presented through one full round of Ohio’s established appellate
review procedure.64

B.

Standards of review

1.

Procedural default
A federal habeas court may not review a claim for relief if the petitioner failed to

obtain consideration of that claim on its merits in state court, either because the petitioner
failed to raise it when state remedies were still available or because the petitioner violated
a state procedural rule.65
When a state asserts a violation of a state procedural rule as the basis for the default,
the Sixth Circuit has promulgated a four-part test to employ when determining if the claim
is, in fact, procedurally defaulted in a federal habeas proceeding:
a.

Does a state procedural rule exist that applies to the petitioner’s claim?

b.

Did the petitioner fail to comply with that rule?

c.

Did the state court rely on that failure as the basis for its refusal to
address the merits of the petitioner’s claim?

d.

Is the state rule violated by the petitioner an adequate and independent
state law basis for barring the federal court from considering the
claim?66

64

28 U.S.C. § 2254(b); Rhines v. Weber, 544 U.S. 269, 274 (2005); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999).
65

Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006).

66

Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir. 2007) (citation omitted).
-11-

As well as establishing these elements, the state procedural rule on point must be
(1) firmly established, and (2) regularly followed before a federal habeas court will decline
review of an allegedly procedurally defaulted claim.67
If a default is established, a petitioner may excuse her default if she can show (1)
cause for default and actual prejudice from the court’s failure to address the alleged
constitutional violation, or (2) that a lack of review of the claim’s merits will result in a
fundamental miscarriage of justice.68 A showing of actual innocence may also excuse a
petitioner’s procedural default.69
A show of “cause” will generally require the petitioner to present some external,
objective factor that prevented him from complying with the state procedural rule.70 Showing
“prejudice” requires the petitioner to show that the alleged constitutional error created an
actual and substantial disadvantage to him, infecting the trial with error of constitutional
magnitude.71 The petitioner must show a reasonable probability of a different outcome at trial
without the error or a showing that prejudice does not exist.72

67

Smith v. Ohio Dep’t of Rehab. & Corrs., 463 F.3d 426, 431 (6th Cir. 2006)
(citations omitted).
68

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

69

Id.

70

Id. at 753.

71

U.S. v. Frady, 456 U.S. 152, 170 (1982).

72

Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003).
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Although the discussion above is relevant, the Supreme Court has held that federal
habeas courts need not consider an assertion of procedural default before deciding a claim
against the petitioner on the merits.73 On that point, the Sixth Circuit has proclaimed that a
federal habeas court may bypass an issue of procedural default when it contains complex
questions of state law and addressing it is unnecessary to resolving the claim against the
petitioner on the merits.74
2.

AEDPA review
If a claim asserted in a federal habeas petition was properly presented to the state

courts and those courts adjudicated the merits of that claim, the controlling federal statute
provides that a federal habeas court may only grant the writ if the state’s decision was either
contrary to clearly established federal law as determined by the United States Supreme Court
or was an unreasonable application of that law.75
When applying the statute, Williams v. Taylor offers guidance to federal habeas
courts.76 In Williams, the United States Supreme Court stated that a decision is “contrary to”
clearly established federal law if “the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state court decides a case differently than

73

Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

74

Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003).

75

28 U.S.C. § 2254(d).

76

Williams v. Taylor, 529 U.S. 362 (2000).
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this Court has on a set of “materially indistinguishable facts.”77 Williams also teaches that a
state court decision is an “unreasonable application” of clearly established federal law if “the
state court identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.”78
Further, a federal habeas court may not find that a state court unreasonably applied
clearly established federal law simply because the habeas court “concludes on its
independent judgment that the relevant state court decision applied clearly established federal
law erroneously or incorrectly.”79 Rather, the federal habeas court may vacate the state court
holding only upon showing that it was “objectively unreasonable.”80
The Supreme Court notes that the “objectively unreasonable” standard is “difficult to
meet,”81 and “highly deferential” to the decision of the state court.82 As the Supreme Court
explained, “[a] state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision”83 In other words, a writ will issue only upon a showing that the state court’s ruling

77

Id. at 412. Accord, Broom v. Mitchell, 441 F.3d 392, 398 (6th Cir. 2006).

78

Williams, 529 U.S. at 413; Broom, 441 F.3d at 398.

79

Williams, 529 U.S. at 411.

80

Id. at 409.

81

Harrington v. Richter, 562 U.S. 86, 102 (2011).

82

Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

83

Richter, 562 U.S. 102.
-14-

“was so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.”84
Beyond that, a state court may be found to have unreasonably applied clearly
established federal law if it unreasonably extends or unreasonably fails to extend a clearly
established federal legal principle to a new context.85
According to Harrington v. Richter, a state court need not explain its conclusion when
it adjudicates a federal claim on the merits.86 When a criminal defendant presents a federal
claim to the state court, which then denies it without any statement of reasons or explanation
for the decision, “it may be presumed that the state court adjudicated the [federal] claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.”87 In such an instance, the federal habeas court is required to show deference to the
decision of the state court.88

84

Id. at 102-03.

85

Id.

86

Richter, 562 U.S. at 99.

87

Id.; Brown v. Bobby, 656 F.3d 325, 328-29 (6th Cir. 2011).

88

Brown, 656 F.3d at 329.
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C.

Application of Standards

1.

Grounds one and two, having not been presented to the Ohio Supreme Court on
direct appeal and as distinct due process claims, are now defaulted due to res
judicata.
Grounds one (the State failed to present sufficient evidence to sustain a conviction)

and two (the petitioner’s right to due process was violated when the trial court applied
improper standards of identification) are procedurally defaulted but, as a preliminary note,
these claims will reappear in similar form within Withrow’s third ground, which has not been
defaulted and has been completely exhausted.
The state argues that grounds one and two were not presented by Withrow on appeal
to the Ohio Supreme Court and res judicata now bars these claims from being exhausted.89
After a review of the briefs submitted on direct appeal, and Withrow’s application to re-open
direct appeal, it is clear that Withrow did not present these distinct claims to the Ohio courts.
Because Ohio courts would now preclude these claims from being asserted on the basis of
res judicata in tandem with state filing deadlines,90 such claims are deemed procedurally
defaulted.

89

ECF # 5, at 40.

90

Ohio courts require that claims be presented at the earliest opportunity, and that
failure to do so precludes the presentation of such claims at a later date. Scott v. Houk, 760
F.3d 497, 505 (6th Cir. 2014) (citing Ohio cases). This Ohio doctrine is considered by the
federal habeas courts to be an adequate and independent state law ground for foreclosing
federal habeas review. Id.
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Read leniently, Withrow brings an argument to bear in his traverse attempting to show
cause in order to excuse his procedural default.91 Withrow notes that his appellate counsel
failed to advise him of the 180-day Ohio statutory period in which an Ohio Revised Code
§ 2953.21 postconviction motion could have been brought and so his counsel was
constitutionally ineffective, and his procedural default should be excused.92 While this may
be true, Withrow was still required to first present this claim to the Ohio courts on appeal
before invoking it as cause to excuse a procedural default;93 because he did not do this, this
argument fails to excuse Withrow’s default of these claims.
2.

Ground Three, concerning ineffective assistance of appellant counsel, should be
denied on the merits because the Ohio court’s decision was not an unreasonable
application of the clearly established federal law of Strickland v. Washington.
Ground three should be denied on the merits because, upon review of its sub-claims,

the Ohio court’s conclusion that there was no Strikland violation is not an unreasonable one.
The Sixth Circuit took Higgins v. Renico94 as an opportunity to refresh the
understanding of the Strickland standard.95 Higgins stated that Strickland required a

91

ECF # 7 at 13.

92

Id. (citing Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014)).

93

Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Withrow twice asserted ineffective
assistance of appellate counsel to the court of appeals and the Supreme Court, once in his
direct appeal and again in his Appellate Rule 26(B) motion. In neither context did he make
an argument about failure to advise of the statutory period for bringing a postconviction
motion under Ohio Revised Code § 2953.21.
94

Higgins v. Renico, 470 F.3d 624 (6th Cir. 2006).

95

Strickland v. Washington, 466 U.S. 668 (1984).
-17-

defendant to show that counsel’s performance was seriously deficient and that the deficiency
caused prejudice.96
The Higgins court then elaborated on the definition of seriously deficient; seriously
deficient counsel falls below “an objective standard of reasonableness” under “prevailing
professional norms.”97 Further, “counsel is strongly presumed to have rendered adequate
assistance ... in the exercise of reasonable professional judgment.”98 The Higgins court also
noted that the defendant has the burden of proving, by a preponderance of the evidence, that
counsel made errors so egregious that counsel could no longer be defined as “counsel” under
the Sixth Amendment.99 Great deference is shown to trial counsel and they cannot be proven
ineffective as long as the approach they have taken can be considered a “sound trial
strategy.”100
If the defendant can establish that counsel was deficient, he must then show prejudice
stemming from that deficiency. The Higgins court sheds more light on what is required to
show prejudice. Not every error that had an effect on the trial will be defined as prejudicial;
only errors that create a reasonable probability of a different outcome can be prejudicial.101

96

Higgins, 470 F.3d at 631 (internal citations omitted).

97

Id. at 629.

98

Id. at 632.

99

Id.

100

Id. at 631.

101

Id. at 633-34
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A reasonable probability is one that undermines confidence in the outcome at trial.102 Overall,
a court must focus on the fairness of the proceeding involved and should look for a
“breakdown in the adversarial process that our system counts on to produce just results.”103
Actual prejudice is also weighed against the amount of evidence that was presented at trial;
a small amount of evidence will create a greater chance that mistakes affected the outcome
and the opposite when a large amount of evidence is presented.104
Because a claim of ineffective appellate counsel is Withrow’s overarching claim, the
appellate court relies on Strickland in their denial of his Rule 26(B) application to reopen.
To be discussed in greater detail below, there was no prejudice to be found in Withrow’s subclaims contained in his writ, and these claims should be denied on the merits as a whole by
denying ground three.
a.

The first sub-claim of ground three (alleging ineffective counsel due to lack of
argument on appeal that the trial court erred in not suppressing the pre-trial
identification of Withrow) should be denied on the merits after AEDPA review
because the decision of the Ohio courts included consideration of federal claims and
was not contrary to the clearly established federal law of United States v. Wade and
Neil v. Biggers and no Strickland violation is present.
In essence, Withrow’s argument fails even though his appellate counsel structured his

argument to suppress identification testimony around an inapplicable section of the Ohio

102

Id.

103

Id. (internal citations omitted).

104

Id.
-19-

Revised Code.105 Counsel argued that Ohio Revised Code § 2933.93 passed after the trial and
is not retroactive to the time of the trial. Because the photo array evidence was not
impermissibly suggestive, no Strickland violation is present because appellate counsel’s
error, if any, did not change the outcome of the trial.
The state appellate court properly applied the federal standards. Manson v. Brathwaite
states that suppression will occur if the defendant can demonstrate that the identification
procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification.”106 If the defendant can prove that the identification was
impermissibly suggestive then the court would engage in a Neils v. Biggers evaluation.107
U.S. v. Wade sheds light on what the Supreme Court of the United States sees as
impermissibly suggestive. Wade gives examples: all of the participants in the lineup were
known to the identifying witness but the suspect, “grossly dissimilar” appearance between
the suspect and the others in the lineup, the suspect is made to wear distinctive clothes that
only the suspect was known to wear, and so on.108
In his motion to reopen direct appeal, Withrow argues that the photo array was
impermissibly suggestive because it was composed of black and white photographs, was

105

ECF # 6-32, at 2619.

106

Manson v. Brathwaite, 432 U.S. 98, 122 (1977) quoting Simmons v. U.S., 390 U.S.
377, 384 (1968).
107

Neils v. Biggers, 409 U.S. 188, 199-200 (1972).

108

U.S. v. Wade, 388 U.S. 218, 233 (1967).
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conducted by lead investigators, and the photo of Withrow was the only photo in which the
head of the person photographed was positioned looking downward and to the right.109 The
appellate court’s review of the record showed that photos chosen by police were chosen
because of their similarities to the descriptions given by the identifying witnesses prior to
their observance of the photo array.110 The appellate court’s conclusion was reasonable
because the examples given by Withrow do not match or come near the examples set out in
Wade discussed above. The contention that the head position of Withrow in his photo was
impermissibly suggestive could lead like-minded jurists to disagree. It is possible that this
sort of head position could lead to a less suggestive position for Withrow as less of his face
can be seen and an identifying witness may not be able to match characteristics from their
memory to the picture. The appellate court correctly halted its analysis and did not continue
to a Biggers totality of the circumstances evaluation.
Withrow cites no case law stating that the errors he alleges were contained within
photo array process were impermissibly suggestive and they do not comport with the
examples set out in Wade, discussed above.111
Withrow’s appellate counsel argued that Ohio Revised Code § 2933.93, passed after
the admission of the identification testimony at trial, could not retroactively affect the trial.112
109

ECF # 6-30, at 2590.

110

ECF # 6-1, at 9.

111

ECF # 6-30, at 2590.

112

ECF #6-32, at 2619.
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This error created no prejudice to Withrow, however, because the appellate court applied the
proper identification standard of review and found that there was no impermissible
suggestion in the police photo array. Therefore, no Strickland violation exists for this
sub-claim.
b.

The second sub-claim under ground three (failure to raise as issue the dismissal of
two petit jurors) was found to present no Strickland violation because the dismissed
jurors could have held a bias against either the defendant or the state and so no
Strickland violation exists.
No Strickland violation exists in this sub-claim because the petit jurors that were

dismissed were potentially biased against either the defendant or the state; arguing that these
jurors should have been admitted may have actually caused prejudice.
As stated above, a Strickland violation will exist where counsel was seriously
deficient and that his or her mistakes prejudiced the defendant. For the immediate purposes,
the Fourteenth Amendment has been solidified by the Supreme Court in Morgan v. Illinois,
ensuring a defendant that he is to be tried by an impartial jury.113 The presence of even one
biased juror sacrifices the defendant’s right to an impartial jury trial.114 Trial courts are shown
great deference in their removal and may only be overturned in the case of “manifest error”115

113

Morgan v. Illinois, 504 U.S. 719, 726 (1992).

114

See id., at 729.

115

Hill v. Brigano, 199 F.3d 833, 843 (1999); cert. denied 529 U.S. 1134 (2000).
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The trial court believed that the two petit jurors who were dismissed should be
dismissed because they held a possible bias against either the state or the defendant.116
Specifically one juror was removed because he was an ex-corrections officer with possible
bias against the state because he was pushed out of his job or possible bias against the
defendant because he had spent many years working as a corrections officer with convicted
criminals and may have harbored ill will against potential inmates.117 The second dismissed
juror was “squeamish” around violent or gruesome images and was removed because she
may have become distracted or distracted other jurors.118 Because there is valid reasoning in
the jurors’ possible bias and the standard for overturning a trial court’s decision to remove
a petit juror is very high, the appellate court’s conclusion that the state trial court did not
create “manifest error” is reasonable.
It would also be hard to say that Withrow’s appellate counsel committed an error so
egregious by not arguing that the trial court abused its discretion in removing these jurors that
Withrow was prejudiced. It is possible that like-minded jurists may disagree on whether these
jurors would have had a negative or, more importantly, a positive effect on the outcome of
the trial for Withrow. If this failure to argue could be seen as an error, under Strickland,
Withrow would have to prove that this error undermined the just outcome of the trial, which
he does not do in his application to reopen direct appeal or in his traverse.
116

ECF # 6-12, at 621; ECF # 6-11, at 455-56.

117

ECF # 6-12, at 621.

118

ECF # 6-11, at 455-56.
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The appellate court’s conclusion that no Strickland violation existed was reasonable.
Because the petit jurors who were dismissed had a possible bias against either party involved
in the trial, the appellate court concluded that the removal was not an abuse of the trial
court’s discretion. Therefore, no Strickland violation exists in this sub-claim because
appellate counsel was not in error; appellate counsel essentially would have been arguing that
removal of possibly biased jurors was abuse of discretion. It may have been a greater error
for appellate counsel to argue that these two jurors should have been admitted to the trial jury
group.
c.

Sub-claim three (appellate counsel failed to argue prosecutorial misconduct on
appeal) was reasonably found to contain no Strickland violation because appellate
counsel did, in fact, argue the most meritorious issue that Withrow raises here, and
the other issues Withrow believes should have been argued did not create an unfair
atmosphere at trial.
The appellate court found no Strickland violation in this sub-claim because appellate

counsel made an argument on the only issue raised by Withrow that garnered enough merit
to be seen as worth raising, but his argument failed in the face of the strong evidence
produced by the State at trial.
The federal standard for prosecutorial misconduct will not consider every
inflammatory statement made by the prosecution to be grounds for reversal.119 It is noted that
even the most seasoned attorneys can get caught up in the heat of the moment and

119

Dunlop v. U.S., 165 U.S. 486, 498 (1897).
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misspeak.120 For habeas corpus relief to be granted, a prosecutor’s statement must be so
egregious that it created a fundamentally unfair atmosphere at trial.121 Defendant must also
show that the claim was false and that it was material.122 In other words, if the statement
could be proven by some other evidence, a violation will not exist.123
The issue that was argued on appeal by Withrow’s appellate counsel who is currently
being scrutinized involved a line of questioning in which a prosecutor asked a police
investigator about the credibility of Withrow’s alibi; the investigator responded that he
thought Withrow was lying.124 The appellate court, after reviewing Withrow’s appellate brief,
decided that the testimony should not have been admitted but the error of the trial court was
harmless because a substantial amount of evidence existed that would back the claim made
by the officer regardless of the fact that the officer’s statement should not have been left on
the record.125 A similar federal proposition was stated in Byrd v. Collins, discussed above at
footnote 125. Reviewing the record and noting in particular that Withrow himself told

120

Id.

121

U.S. v. Young, 470 U.S. 1, 15 (1985).

122

Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000), cert. denied, 121 S. Ct. 786

(2001).
123

Id.

124

ECF # 6-15, at 1458, 1459.

125

ECF # 1 at 10.
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investigators he had lied about his alibi in later interviews,126 the appellate court reasonably
concluded that the error was in fact harmless.
The state appellate court concluded that the other examples of prosecutorial
misconduct Withrow believes should have been presented by his appellate counsel were
nothing more than examples of zealous advocacy on the part of the State. These examples
of alleged prosecutorial misconduct involved statements made by a prosecutor proclaiming
that all of the evidence in the trial came from the State, that Withrow was guilty, and that
some witnesses were “pirates.”127 The “pirate” indication was created by the State to inform
jurors that some witnesses were drug users but their testimony should not be disregarded
outright.128 For these statements to have been a valid topic for argument of prosecutorial
misconduct on appeal they would have needed to seriously hinder the defendant and create
a fundamentally unfair atmosphere.129 The appellate court believed that the prosecutor’s
statements displayed nothing more than “zealous advocacy on behalf of the state,” and
created no prejudice requiring appellate review.130
The appellate court reasonably concluded that no Strickland violation exists within
this sub-claim because appellate counsel actually argued the most meritorious example

126

ECF # 6-15, at 1472-73.

127

ECF # 6-30, at 2593.

128

Id.

129

Young, 470 U.S. at 15.

130

ECF # 6-32, at 2622.
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proffered by Withrow in his motion to reopen direct appeal but that argument failed in the
face of the evidence presented at trial. The appellate court rightly concluded that the
remaining examples of prosecutorial misconduct were without merit.
d.

Sub-claim four (appellate counsel was ineffective because he did not present an
argument concerning preclusion of jury note-taking) was found to create no prejudice
because Withrow puts forth only speculative support to buttress his argument.
Because Withrow put forth only speculative and hollow arguments supporting his

assertion that the preclusion of juror note-taking created prejudice at trial, the state appellate
court reasonably concluded that Withrow’s appellate counsel cannot be deemed ineffective
under Strickland for failing to put forth an argument on the issue.
The state appellate court points out that the decision to permit or prohibit juror notetaking is left to the discretion of the trial court.131 The appellate court highlights the complete
speculation involved in determining whether lack of juror note-taking actually prejudiced
Withrow, stating that jurors may have taken enormous amounts of notes or none at all had
they been allowed to.132
The state appellate court reasonably concluded that no Strickland violation existed
when Withrow’s appellate counsel failed to argue that lack of juror note-taking hindered
Withrow’s case at trial. Withrow advanced only speculative arguments and failed to show
that the decision of the trial court was arbitrary or unreasonable in any way.

131

Id.

132

Id., at 2623.
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e.

Sub-claim five (appellate counsel failed to submit an argument to support manifest
weight issue) contains no Strickland violation because regardless of the length of
appellate counsel’s brief on the issue, the state appeals court reasonably concluded
that the manifest weight supported the verdict.
Because the state appellate court reviewed the record and concluded that there was

sufficient evidence to convict Withrow, there is no prejudicial Strickland violation where
appellate counsel put forth a meager brief.
It seems that Withrow has confused sufficiency of the evidence and manifest weight
of the evidence.133 In his writ he contends that appellate counsel failed to present an argument
on manifest weight but in order to invoke a due process claim he would need to argue
sufficiency of the evidence. Because federal standards encompass Ohio’s distinct manifest
weight claims and sufficiency of the evidence claims, I will move forward in discussing
Withrow’s sub-claim as if he put fourth a lack of sufficient evidence argument.
A federally sufficient claim is one that “fairly [supports] a conclusion that every
element of the crime has been proven beyond a reasonable doubt.”134 The relevant question
for the court is whether, after reviewing the evidence in the light most favorable to the

133

Withrow argues lack of sufficient evidence, a cognizable, federal claim in ground
one of his writ for habeas relief. In ground three, under supporting facts, Withrow argues that
appellate counsel failed to put fourth an argument on a lack of manifest weight. Manifest
weight issues are not federal issues, they are state issues. However, given that Withrow is
proceeding pro se, I will read his brief as if he had argued a sufficiency of evidence issue in
order to exhaust all avenues of possible relief.
134

Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
-28-

prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, not whether the reviewing court believes the evidence.135
It should be noted that in his application to reopen direct appeal, Withrow argued that there
was insufficient evidence regarding prior calculation in the killing of Post at trial.136 This
argument has some merit on its face but fails to rid Withrow of guilt. Withrow misses Ohio
Revised Code § 2903.01(B), which is essentially an expanded felony murder rule; the
pertinent section contains “aggravated robbery,” which Withrow was convicted of and does
not contest sufficiency, as a circumstance for conviction of aggravated murder.137
In inspecting the evidence presented at trial, the state appellate court engaged in an
extensive review of the record.138 Although the appellate court notes that no physical
evidence exists, the circumstantial evidence produced by the State was diverse and on
point.139 Most notably, the state appellate court highlights the testimony of Schick on the
instance when Withrow told Schick that he had “killed the guy inside” of Post’s apartment.140
The State also produced evidence explaining why no physical evidence was recovered with

135

Id. at 319.

136

ECF # 6-30, at 2588.

137

Ohio Rev. Code § 2903.01(B).

138

ECF # 1 at 12.

139

Id.

140

Id.
-29-

testimony from a forensic scientist.141 The state appellate court concludes that they do not
think a jury could have “lost its way” with all of the evidence that was presented at trial, and
I am inclined to agree.142 Using the vast amount of evidence put forth by the State at trial, it
is a reasonable conclusion that a trier of fact could find all essential elements of Ohio
Revised Code § 2903.01, in pertinent part “no person shall purposely cause the death of
another ... while committing or attempting to commit ... aggravated robbery.”
Thus, even in the light of appellate counsel’s lacking brief143 the appellate court
properly reviewed the evidence entered at trial and found that it was sufficient. Appellate
counsel’s error, if a short brief can be considered an error in this case, did not substantially
alter the outcome of the appeal and so no Strickland violation is present.

141

Id. at 13.

142

Id.

143

ECF # 6-22, at 2441.
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Conclusion
Grounds one and two have been procedurally defaulted, and Withrow has shown no
cause to excuse the default; therefore, these claims should be dismissed.144 Additionally,
because the appellate court reasonably found that no Strickland violation existed in any of
the sub-claims beneath ground three, ground three should be denied on the merits.

Dated: June 30, 2015

s/ William H. Baughman, Jr.
United States Magistrate Judge

Objections
Any objections to this Report and Recommendation must be filed with the Clerk of
Courts within fourteen (14) days of receipt of this notice. Failure to file objections within the
specified time waives the right to appeal the District Court’s order.145

144

Withrow also fails to show or argue actual innocence so as to excuse his procedural

default.
145

See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Thomas v.
Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111 (1986).
-31-