Richardson v. LaRose
Filing
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Memorandum Opinion and Order: The Report and Recommendation (Doc. No. 18 ) is accepted in part (as to grounds two and three) and rejected in part (as to ground one). The petition for writ of habeas corpus is denied and this case is dismissed. Further, the Court certifies that an appeal from this decision could not be taken in good faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Sara Lioi on 7/28/2016. (H,KR)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LANCE RICHARDSON,
PETITIONER,
vs.
CHRISTOPHER LAROSE,
RESPONDENT.
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CASE NO. 5:14-cv-2050
JUDGE SARA LIOI
MEMORANDUM OPINION
Before the Court is the Report and Recommendation of Magistrate Judge Nancy A.
Vecchiarelli (Doc. No. 18 [“R&R”]) with respect to this petition for writ of habeas corpus filed
under 28 U.S.C. § 2254. The magistrate judge recommends dismissing with respect to grounds
two and three, and granting with respect to ground one.1 Respondent filed objections to the R&R.
(Doc. No. 20 [“Obj.”].) No opposition to the objections has been filed.2
Pursuant to Fed. R. Civ. P. 72(b)(3), the Court has conducted its de novo review of the
matters raised in the objections. For the reasons discussed below, the R&R is accepted as to its
recommendations relating to grounds two and three, but is rejected as to the recommendation
relating to ground one.
1
The R&R mistakenly states in the summary sections at the beginning and end that the recommendation is to
dismiss ground one and three and to grant the petition as to ground two. It is clear from the full text of the R&R,
however, that this is a matter of misnumbering. Respondent also detected this error and has objected with the proper
understanding that it is ground one that would be granted under the magistrate judge’s recommendation.
2
The Court also notes that the petition itself contains no argument. It makes reference to a non-existent “Exhibit A”
that purports to contain the argument. Further, despite being given two extensions of time to file a reply (referred to
as a “traverse”), petitioner failed to do so.
I. BACKGROUND
Petitioner was indicted by a Stark County grand jury on one count each of aggravated
robbery (§ 2911.01(A)(3)) and felonious assault (§ 2903.11(A)(1) and/or (A)(2)), based upon the
following facts, as set forth by the state court:
{¶ 2} In December of 2011, Todd Davis placed an ad on Craig’s List for a
date. A woman named Tiffany responded to his ad and started texting Davis. On
January 3, 2012, Tiffany texted Davis wanting to meet him at a bar on the corner
of 15th Street and Harrison in Canton.
{¶ 3} Davis went to the bar. Tiffany was not there, so he sat at the bar and
drank a few sodas. Eventually Tiffany texted Davis, asking him to pick her up at
an address in Canton.
{¶ 4} Davis arrived at the address Tiffany gave him around 10:30 p.m. At
her direction, he parked in a public lot near Aultman Hospital. Tiffany was
waiting for him. Davis and Tiffany began walking down an alley where there
were apartments. Davis assumed that they were walking to Tiffany's apartment.
{¶ 5} A man wearing a hoodie walked up to Tiffany and asked her for a
light. He did not have his cigarette with him, and briefly walked away. When he
came back, he hit Davis in the head with [a] bottle. While Davis was on the
ground, the man kicked him in the face several times, asking for his wallet. At this
point, Davis was knocked “totally loo-loo.” Tr. 141. Tiffany, whose real name is
Maria Likouris, ran away. The man took Davis’ cell phone and his wallet. Davis
went to Aultman Hospital and was treated for a broken nose and fractured eye
socket.
{¶ 6} Detective Gary Cochran of the Canton Police Department was
assigned to investigate the case. He learned that appellant’s Chase credit card was
used at a Speedway gas station near the site of the robbery at 11:03 p.m. Video
surveillance tapes showed Likouris and a man wearing a black hoodie using
Davis’ credit card to make purchases. The credit card was then used at 11:43 p.m.
in a Giant Eagle grocery store, along with a Giant Eagle Advantage Card
belonging to appellant. Likouris and the man in the hoodie were also spotted
holding hands on Wal-Mart video surveillance at 3:32 a.m., using Davis’ credit
card to attempt to purchase American Express gift cards. While in the store, the
pair returned a Wii game for a cash refund, and appellant’s name was signed to
the receipt.
{¶ 7} The video surveillance tapes were shown to Davis. Davis was
“pretty sure” that the woman in the videos was the woman he knew as Tiffany. He
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was not sure if the male in the videos was the man who attacked him. Three days
later, Davis viewed a photo lineup that included appellant. On a scale of one to
five, with one being certain a photo is not of the perpetrator and five being certain
that the photo is of the perpetrator, Davis rated the photo of appellant a three and
the remaining five photos as ones.
{¶ 8} Det. Cochran interviewed Likouris on February 3, 2012. After
waiving her Miranda rights, she told Cochran that appellant, who was her
boyfriend, set up the meeting with Davis. Appellant asked her for a lighter and the
next thing she knew, appellant hit Davis. However, she later told a public
defender that appellant attacked Davis in self defense.
State v. Richardson, No. 2012CA00166, 2013 WL 2243974, at *1 (Ohio Ct. App. May 20,
2013). These facts are “presumed to be correct[]” absent rebuttal by “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
Represented by counsel, in July 2012, petitioner moved to suppress Davis’s photo lineup
identification of petitioner, arguing that it was the product of an impermissibly suggestive
method, specifically that it had been tainted by Davis’s earlier viewing of surveillance videos of
someone using his stolen credit card. (Doc. No. 9 -- Appendix to Answer [“App.”] at 1046-493
(Ex. 5).) The trial court denied the motion, concluding that the method of identification was
neither impermissibly suggestive or unreliable. (Id. at 1054-55 (Ex. 7).) This decision was
affirmed on appeal, where the court concluded that the identification method was not unduly
suggestive and that any question as to its reliability went to the weight, not the admissibility, of
the evidence. (Id. at 1149-50 (Ex. 19).) It is this failure to suppress the photo lineup identification
that forms the basis of ground one of the habeas petition.4
3
All page number references are to the page identification number generated by the Court’s electronic docketing
system.
4
In the state court, the motion also addressed suppression of certain un-Mirandized statements made by petitioner to
the investigating detective. This aspect of the motion was granted by the trial judge and is not at issue here.
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II. DISCUSSION
A.
The Standard of Review
Under 28 U.S.C. § 636(b)(1)(C), “[a] judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at
*1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is
dispositive of a claim or defense of a party shall be subject to de novo review by the district court
in light of specific objections filed by any party.”). “An ‘objection’ that does nothing more than
state a disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.” Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P. 72(b)(3) (“[t]he district
judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to”); LR 72.3(b) (any objecting party shall file “written objections which shall
specifically identify the portions of the proposed findings, recommendations, or report to which
objection is made and the basis for such objections.”). After review, the district judge “may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In conducting its de novo review in a habeas context, this Court must be mindful of the
requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214 (1996), which provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim−
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). “Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03, 131 S. Ct. 770, 178 L.
Ed. 2d 624 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S. Ct. 2781, 61 L. Ed.
2d 560 (1979) (Stevens, J., concurring in judgment)).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas
court may grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146 L. Ed. 2d 389
(2000).
B.
De Novo Review
Neither party has filed an objection to the recommendation to deny and dismiss the
petition as to grounds two and three. The Court has examined the R&R’s reasoning with respect
to those two grounds and has found that reasoning to be correct. Accordingly, to that extent, the
R&R is accepted and adopted.
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The R&R recommends granting the petition with respect to ground one because the
identification procedure was “akin to the suggestiveness of a one-man show-up.” (R&R at 1295,
quoting United States v. De Leon-Quinones, 588 F.3d 748, 754 (1st Cir. 2009).)5 The R&R
concludes that the state courts improperly collapsed into one step the two-step inquiry required
by Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Respondent objects to this recommendation, arguing that the Ohio courts correctly
determined that the identification process was the result of good police work, and not an
impermissibly suggestive procedure. (Obj. at 1316.)
Respondent specifically objects to three of the R&R’s assertions with respect to the
content of the record. First, respondent objects to the statement that Detective Cochran, when
asking Davis to review the video surveillance tapes, identified the person in the tapes wearing a
black hoodie as a “suspect.” Respondent cites to testimony from both the suppression hearing
and the trial to the effect that Cochran simply asked Davis to “focus” on the person in the hoodie
and his companion because they had used Davis’s stolen credit card. (Obj. at 1307, citing Supp.
Hr’g Tr. [Doc. No. 6-1] at 669; see also Trial Tr. [Doc. No. 6-2] at 857.) Second, pointing to
Cochran’s suppression hearing testimony that he showed Davis surveillance video of the persons
using Davis’s credit card in order to determine if that was the person who robbed Davis,
respondent challenges the R&R’s conclusion that the prosecution did not offer any evidence to
rebut the suggestion that the identification procedure was impermissibly suggestive. (Id. at 1308,
citing Supp. Hr’g Tr. at 648.) Finally, respondent opposes the accuracy of the R&R’s
characterization of the video’s “multiple views of [p]etitioner’s face, some of which last for
5
Because the petition “does not contain any argument regarding the merits of his grounds for relief[,]” and because
petitioner “failed to file a Traverse[,]” (R&R at 1291 n.4), the magistrate judge “relied upon [p]etitioner’s state court
filings to construe [p]etitioner’s arguments in this matter.” (Id.)
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greater than 10 seconds[,]” (id.), pointing out that, in most of the images, the person in the
hoodie had his hand at least partially covering his face and was otherwise generally obscured by
the hoodie itself. Respondent asserts that, taken in total context, it was reasonable for the state
court to conclude that the identification procedure was not impermissibly suggestive. To the
extent respondent challenges the R&R’s record characterizations, the Court agrees that the
characterizations are not accurate and adopts the characterizations set forth in the objections. To
that extent, the objections are sustained.
Even more importantly, however, respondent challenges the R&R for a failure to apply
the proper standard of deference required by AEDPA and for a misapplication of the controlling
Supreme Court case governing due process challenges to identification procedures.
Respondent points out that AEDPA “‘dictates a highly deferential standard for evaluating
state-court rulings which demands that state court decisions be given the benefit of the doubt,’”
(Obj. at 1309, quoting Bell v. Cone, 543 U.S. 447, 455, 125 S. Ct. 847, 160 L. Ed. 2d 881
(2005)), and that “‘even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.’” (Id., quoting Harrington, supra.) Respondent asserts that the
R&R fails to afford the proper deference to the state court decisions when it concludes that the
state courts did not properly apply Biggers, supra.
The R&R properly sets forth the law relating to exclusion of identification evidence, as
follows:
The standard for excluding identification evidence requires consideration
of two issues: first, whether the identification procedure was unnecessarily
suggestive; and, second, if so, whether the identification was nonetheless reliable.
Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. 2005). The party seeking to
exclude the identification evidence bears the burden of showing that the
procedure was unnecessarily suggestive. Id. at 469-70. If the identification
procedure was unnecessarily suggestive, a reviewing court must determine
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whether the identification was nonetheless reliable by considering the totality of
the circumstances, including:
[(1)] the opportunity of the witness to view the criminal at the time
of the crime, [(2)] the witness’ degree of attention, [(3)] the
accuracy of the witness’ prior description of the criminal, [(4)] the
level of certainty demonstrated by the witness at the confrontation,
and [(5)] the length of time between the crime and the
confrontation.
Biggers, 409 U.S. at 199-200. “[R]eliability is the linchpin in determining the
admissibility of identification testimony.” Mason v. Brathwaite, 432 U.S. 98, 114
(1977).
(R&R at 1292.) The R&R then concludes that “the state court decisions regarding the
admissibility of Davis’s identification constitute objectively unreasonable applications of
Biggers because the state courts entirely failed to engage in the correct analysis.” (Id.)
Ultimately, the R&R concludes that the state courts, both initially and on appeal, “collapsed the
two [Biggers] inquiries into one step, and considered only the level of certainty Davis expressed
in making the identification[,]” which “under Biggers, is relevant to the reliability of the
identification rather than the suggestiveness of the procedure[.]” (Id. at 1293, 1294.) The
gravamen of the R&R’s analysis is that “the state … court[s] [both] bypassed the issue of
whether the identification procedure was impermissibly suggestive[,]” and “entirely failed to
consider the reliability of that identification[.]” (Id. at 1294.)
The Court does not accept the R&R’s conclusion. The Supreme Court has noted that if
“‘fairminded jurists could disagree’ on the correctness of the state court’s decision[,]”
Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct.
2140, 158 L. Ed. 2d 938 (2004)), the decision precludes habeas relief. See also R&R at 1287.
“[E]valuating whether a rule application was unreasonable requires considering the rule’s
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specificity. The more general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.” Yarborough, 541 U.S. at 664 (quoted by R&R at 1287).
Despite quoting Yarborough, the R&R did not examine whether the Biggers rule is
general or specific. As correctly pointed out by the respondent, courts that have addressed the
question have found the Biggers test to be “a general, open-ended test,” requiring an “especially
deferential[]” review. Ege v. Warren, No. 5:11-CV-10573, 2011 WL 6899940, at *18 (E.D.
Mich. Nov. 30, 2012) (citing Yarborough; Rock v. Conway, 470 F. App’x 15, 17 (2d Cir. 2012);
Tilmon v. Warden Winn Corr. Ctr., No. 05–2170, 2009 WL 720886, at *6 (W.D. La. Mar. 16,
2009); Hayes v. Konteh, No. 3:05CV2958, 2008 WL 596097, at *9 (N.D. Ohio Mar. 4, 2008)
(R&R adopted by 2013 WL 210706)); see also Williams v. Bauman, 759 F.3d 630, 639 (6th Cir.
2014) (assessing a Biggers issue and citing Yarborough).
Furthermore, the Court does not agree that the state courts collapsed the Biggers analysis
into one step. Notably, at the suppression hearing, the trial judge found that the process was not
impermissibly suggestive and concluded that Richardson “didn’t sweep the doubleheader[,]”
(Supp. Hr’g Tr. at 688), an obvious reference to the two-pronged Biggers test. The trial judge
expressly noted that, because Davis actually failed to identify his attacker in either the
surveillance videos or the photo lineup, “if the officer was suggesting something, he didn’t
suggest it well[.]” (Id. at 686.) In the formal order denying the motion, the trial judge ruled that
he “[did] not find that the method used to identify the Defendant was impermissibly suggestive
or unreliable.” (Judgment Entry [Doc. No. 9, Ex. 7] at 1055.)
Moreover, in Biggers, the Court stated that “the central question [is] whether under the
totality of the circumstances, the identification was reliable even though the confrontation
procedure was suggestive.” Biggers, 409 U.S. at 199 (emphasis added) (quotation marks
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omitted). Therefore, even if, for sake of argument, one accepts that the surveillance videos were
suggestive of the identity of the attacker (which the Court does not accept), it is not a foregone
conclusion that the identification must be excluded. The trial court, in denying the suppression
motion, expressly noted that Davis’s previous exposure to Richardson via the surveillance videos
did not “taint[] any subsequent photo identification[]” because “the victim was never able to
specifically identify [Richardson] as the culprit.” (Judgment Entry [Doc. No. 9] at 1055.)
Further, “[t]he victim assigned the number 3 from a 1 to 5 scale as to his confidence level of
identifying [Richardson].” (Id.) Therefore, the trial court concluded that there was no
“substantial likelihood of irreparable misidentification.” (Id.)
The court of appeals agreed with the trial court that Richardson had not met his burden of
showing that the method used was impermissibly suggestive. It noted that Davis (whom it
incorrectly referred to as “appellant”) “was shown the videotape several days before the photo
lineup[] … [and] was unable to identify the man in the videotape as the man who assaulted
him[.]” (Opinion [Doc. No. 9, Ex. 19] at 1150.) Even when Davis viewed the photos a few days
later, “he was still only able to assign a number of three out of five to his certainty that appellant
was the man who assaulted him.” (Id.) Ultimately, it concluded that “[t]here is nothing in the
evidence presented at the suppression hearing to indicate that the identification in the photo
lineup was in any way tainted by the videotape.” (Id.)
In other words, both the trial court and the appeals court concluded, just as the Court in
Biggers, that the victim’s “record for reliability was … a good one, as [he] had previously
resisted whatever suggestiveness inhere[d] in [the photo lineup].” Biggers, 409 U.S. at 201. “The
evidence was properly allowed to go to the jury.” Id. (footnote omitted).
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Thus, the adjudication by the state courts did not result in “a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court[.]” 28 U.S.C. § 2254(d)(1).
Accordingly, the Court sustains the objection with respect to ground one and rejects the
R&R’s conclusion that the habeas petition should be granted as to that ground.
III. CONCLUSION
For the reasons discussed above, as well as those set forth in the objections, the R&R is
accepted in part (as to grounds two and three) and rejected in part (as to ground one). The
petition for writ of habeas corpus is denied and this case is dismissed. Further, the Court certifies
that an appeal from this decision could not be taken in good faith and that there is no basis upon
which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
Dated: July 28, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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