Reed v. Forshey
Order: The petitioner's objections (Doc. 16 ) to the Magistrate Judge's Report &Recommendation (Doc. 14 ) be, and the same hereby are, overruled. The Magistrate Judge's Report & Recommendation be, and the same hereby is,adopte d as the Order of this Court. The petition be, and the same hereby is, dismissed with prejudice. Jurists of reason could not reasonably dispute the rationale, findings, and conclusions of the Magistrate Judge's Report and Recommendation or of this Order, and I, therefore, decline to issuea Certificate of Appealability. Judge James G. Carr on 1/20/17. (Attachments: # 1 R&R)(C,D)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 3:15CV00331
This is a habeas corpus case under 28 U.S.C. § 2254. Pending for review are the petitioner's
objections (Doc. 16) to a Magistrate Judge's Report & Recommendation (R&R), in which the
Magistrate Judge recommends dismissal of the petition with prejudice. (Doc. 14).
On de novo review, for the reasons that follow, I find the R&R well taken. Accordingly, I
adopt the R&R as the order of this court and dismiss the petition with prejudice.
I decline to grant a Certificate of Appealability, as jurists of reason could not disagree with
the R&R or this Order adopting the R&R and granting dismissal with prejudice.
A jury in the Wayne County, Ohio, Court of Common Pleas returned a verdict of aggravated
murder. The evidence shows that during the early morning hours of December 10, 2011, the
petitioner, after arming himself with a handgun and unsuccessfully trying to obtain an AK-47 (which,
however, lacked a magazine and, thus, was useless), approached the victim, "Gucci." Petitioner put
his weapon to Gucci's chest, asking him if he was Gucci. Gucci tried to grab the gun; it fired. Gucci
and petitioner struggled on the ground. As Gucci was trying to get up, petitioner fired a second shot.
Gucci died shortly thereafter.
The state court of appeals rejected all but one of petitioner's assignments of error. (Relating
to sentencing, that issue is not relevant to the instant § 2254 proceeding). The Ohio Supreme Court
declined review. The state courts rejected petitioner's post-conviction petition.
Petitioner timely filed the instant § 2254 petition, in which he raises two claims of ineffective
assistance of trial counsel, namely that counsel failed: 1) to move to suppress the testimony of a
witness, Samantha Ralston, though her testimony resulted from an impermissible suggestive set of
photo arrays; and 2) to object to the role that the petitioner's refusal to accept a plea bargain (for an
agreed fourteen-year sentence) played when the judge sentenced petitioner to a term of life without
In an extensive and detailed R&R, the Magistrate Judge concluded that the state appellate
court's decision to reject both contentions was neither contrary to nor involved an unreasonable
application of clearly established federal law as determined by the United States Supreme Court, see
The petitioner's objections challenge the merits of the state court's determinations that the
photo arrays were not impermissibly suggestive and that the sentence the petitioner received did not
manifest a vindictive intent to punish the petitioner for exercising his fundamental right to reject a
plea offer and stand trial. The problem with the petitioner's objections to the R&R is that the
petitioner fails entirely to argue, much less meet, the standard of § 2254(d)(1). It is not enough to
suggest or even show error on the part of the state courts (and Magistrate Judge vis-a-vis his view
of the state court's actions). Instead, the petitioner must show that the Magistrate Judge's application
of the § 2254(d)(1) standard was lacking and that the state court's rulings on the merits (that in
neither regard was counsel's performance constitutionally inadequate) was either contrary to or
involved an unreasonable application of controlling Supreme Court case law.
Petitioner's objections fail to meet this burden.
In any event, I have undertaken an independent de novo review of the record, state courts’
decisions, and applicable legal doctrines. I agree with the state courts and Magistrate Judge that the
photo arrays were not impermissibly suggestive. The first array, which petitioner's objections
reproduce, consisted of blurred, dim, and indistinct booking photos of substantially similar AfricanAmerican males. I agree with the investigating officer's assessment that there was little likelihood
anyone could be picked out from that array.
I also disagree with the petitioner's contention that including the petitioner's photo in the first
array (which left Ms. Ralston unable to choose anyone of the depicted men as the shooter)
improperly or impermissibly preconditioned her to select the petitioner's driver's license photo as that
of the shooter. This is so, even though the petitioner was the only person depicted in both sets of photos.
There appears, in any event–though neither the state courts nor the Magistrate Judge reached
the issue–that even if the arrays were constitutionally defective, that failing did not affect the
outcome. When asked who shot him, the victim said, "Shaun." (The petitioner's suggestion that the
victim may have been referring to the petitioner's brother, Ashon, due to the similarity between the
last syllables of their names is speculative and unpersuasive).
There were other witnesses, including the petitioner's own brother, who knew him well;
among those witnesses were persons who had been with petitioner in the period immediately before
the shooting. They testified he was armed (and sought unsuccessfully even more forceful firepower)
because he was afraid Gucci, a "Detroit Boy" who had been hanging around the City of Wooster, was
going to shoot up the petitioner's house. At least one witness testified that he saw the petitioner fire
the second shot into Gucci as he was on the ground.
From the record, it is reasonable to infer that even if the state courts and Magistrate Judge
erred in finding no deficiency in the initial determination as to suggestiveness, no basis existed for
finding that any impermissible suggestiveness affected the jury's verdict.
Finally, the petitioner's challenge to his lawyer's failure to object to the possibility of judicial
vindictiveness in response to the petitioner's having stood trial likewise merely urges me to substitute
my view of the constitutional legitimacy of the sentence for that of the state courts. However,§
2254(d)(1) precludes me from doing so. Habeas review does not involve reversal as if on another
level of appellate review; relief only comes when a petitioner meets his burden under § 2254(d)(1).
Petitioner's objections in this case fail to meet that burden.
For the foregoing reasons, it is, hereby,
The petitioner's objections (Doc. 16) to the Magistrate Judge's Report &
Recommendation (Doc. 14) be, and the same hereby are, overruled;
The Magistrate Judge's Report & Recommendation be, and the same hereby is,
adopted as the Order of this Court; and
The petition be, and the same hereby is, dismissed with prejudice.
Jurists of reason could not reasonably dispute the rationale, findings, and conclusions of the
Magistrate Judge's Report and Recommendation or of this Order, and I, therefore, decline to issue
a Certificate of Appealability.
/s/ James G. Carr
Sr. U.S. District Judge
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