Harris vs. Hamilton County Court of Common Pleas, et al

Filing 8

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus. It is Recommended that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) be DENIED with prejudice, a certificate of appealability s hould not issue, the Court should certify that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith", and leave to appeal IFP should be DENIED. Objections to R&R due by 6/1/2015. Signed by Magistrate Judge Karen L. Litkovitz on 5/13/15. (sct)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOSEPH HARRIS,
Petitioner,

Case No. 1:15-cv-189
Black, J.
Litkovitz, M.J.

vs.
HAMILTON COUNTY
SHERIFF, et al.,
Respondents.

REPORT AND
RECOMMENDATION

Petitioner, through counsel, has filed a pretrial petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (Doc. 1). This matter is before the Court on the petition,
respondents’ return of writ and supplemental return of writ, and petitioner’s reply. (Docs. 1, 4,
6, 7).
I.

FACTUAL BACKGROUND
The Ohio Court of Appeals set forth the following summary of the facts that led to

petitioner’s convictions and sentence:
Gulleman was 18 years old when he drove from Indiana to Winton Terrace for the
purpose of buying Oxycontin from Harris. Gulleman parked his car in a lot. He
was then shot seven to eight times. He died at the scene.
(Doc. 1, Ex. 4, PageID 70).
II.

PROCEDURAL HISTORY
State Trial Proceedings
On October 29, 2010, the Hamilton County, Ohio grand jury returned a six-count

indictment charging petitioner with aggravated murder, murder, aggravated robbery, and three
counts of having weapons while under disability. (Doc. 1, Ex. 1). Following a jury trial,
petitioner was found guilty of all counts charged in the indictment. (Doc. 1, Ex. 2). Petitioner

received a total aggregate prison sentence of life without possibility of parole plus sixteen years
in the Ohio Department of Corrections. (Id.).
Direct Appeal
Petitioner, through counsel, filed a timely notice of appeal to the Ohio Court of Appeals.
Petitioner raised the following six assignments of error in his appellate brief:
1. The trial court erred to the prejudice of the appellant by allowing the state to
introduce evidence of the appellant’s court ordered competency evaluation,
including statements appellant made to the court appointed psychiatrist, in
violation of the Fifth Amendment protection against self incrimination, the Sixth
Amendment right to counsel and the Fourteenth Amendment right to a fair trial
and due process of law as guaranteed by the United States Constitution.
2. The trial court erred to the prejudice of the appellant in failing to grant his motion
to compel discovery violating his right to a fair trial and due process of law as
guaranteed by the Fourteenth Amendment to the United States Constitution.
3. The state engaged in prosecutorial misconduct which deprived appellant of a fair
trial and due process of law as guaranteed by the Fourteenth Amendment to the
United States Constitution.
4. Appellant was deprived of his right to effective assistance of counsel in violation
of his right to a fair trial and the effective assistance of counsel as guaranteed by
the Sixth and Fourteenth Amendments.
5. The trial court erred to the prejudice of the appellant in that it convicted him
based on insufficient evidence and that it convicted him against the manifest
weight of the evidence, in violation of the due process clause of the Constitution.
The trial court further erred in failing to grant appellant’s Rule 29 motion at the
close of the state’s case in chief.
6. The cumulative effect of the errors which occurred in this case deprived
defendant-appellant of his right to a fair trial and due process of law in violation
of the Fourteenth Amendment.
(Doc. 1, Exhibit 3, PageID 23–26). On February 6, 2013, the Ohio Court of Appeals affirmed
the judgment of the trial court in part, reversed in part, and remanded the case to the trial court
for a new trial. (Doc. 1, Ex. 4, PageID 67). The Court of Appeals sustained petitioner’s first
assignment of error, finding that the trial court erred when it allowed a court psychologist to
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testify regarding petitioner’s competency evaluation during the state’s case in chief. The appeals
court overruled petitioner’s remaining assignments of error.
Ohio Supreme Court
The state filed a notice of appeal and memorandum in support of jurisdiction to the Ohio
Supreme Court. Petitioner, through counsel, filed a cross appeal seeking review of the Court of
Appeals’ decision overruling petitioner’s assignment of error challenging the sufficiency of
evidence. (Doc. 1, Ex. 5, PageID 84). The Ohio Supreme Court accepted for review the state’s
appeal, but declined to review petitioner’s cross appeal. (Doc. 1, Ex. 6, PageID 102). On
January 22, 2015, the Ohio Supreme Court affirmed the judgment of the Ohio Court of Appeals
and remanded the case to the Hamilton County Court of Common Pleas for a retrial. (Doc. 1,
Ex. 7, PageID 103).
Federal Habeas Corpus
Petitioner, through counsel, filed the instant federal habeas corpus action on March 18,
2015. (Doc. 1). In the petition, petitioner claims that insufficient evidence was offered to
support his convictions for aggravated robbery and aggravated murder. Following his initial
trial, petitioner unsuccessfully challenged the sufficiency of evidence supporting his convictions
in the Ohio Court of Appeals on direct appeal and in his cross appeal to the Ohio Supreme Court.
As in this case, “[w]hen a state reviewing court specifically finds the evidence sufficient to
support a conviction but reverses on other grounds and orders a new trial, the defendant may
seek to prevent a retrial on double jeopardy grounds by bringing a federal habeas corpus
proceeding after state remedies have been exhausted.” Delk v. Atkinson, 665 F.2d 90, 93 (6th
Cir. 1981). See also Burks v. United States, 437 U.S. 1, 18 (1978) (“the Double Jeopardy Clause
precludes a second trial once the reviewing court has found the evidence legally insufficient”).

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Because petitioner maintains that there was insufficient evidence to support his aggravated
robbery and aggravated murder convictions, he claims that his pretrial custody and pending
retrial violate his right against double jeopardy.
Respondents have filed a return of writ and supplemental return of writ in opposition to
the petition. (Doc. 4, 7). According to respondents, the petition is without merit.
III.

THE PETITION SHOULD BE DENIED
In order to assess the merits of petitioner’s double jeopardy claim, the Court must look to

the merits of the underlying sufficiency of evidence claim. The applicable standard of review
governing the adjudication of petitioner’s sufficiency of the evidence claim is set forth in 28
U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to
any claim adjudicated on the merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; 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).
“A decision is ‘contrary to’ clearly established federal law when ‘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.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412–13 (2000)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘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.’” Id. at 599–600 (quoting Williams, 529 U.S. at
4

413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster,
U.S. , 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the
record before the state court where a claim has been adjudicated on the merits by
the state court). It is not enough for us to determine that the state court’s
determination is incorrect; to grant the writ under this clause, we must hold that
the state court’s determination is unreasonable. . . . This is a “substantially higher
threshold.”. . . To warrant AEDPA deference, a state court’s “decision on the
merits” does not have to give any explanation for its results, Harrington v.
Richter, U.S. , 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need
to cite the relevant Supreme Court cases, as long as “neither the reasoning nor the
result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3,
8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).
Id. (emphasis in original). The Supreme Court recently extended its ruling in Harrington to hold
that when a state court rules against a defendant in an opinion that “addresses some issues but
does not expressly address the federal claim in question,” the federal habeas court must presume,
subject to rebuttal, that the federal claim was “adjudicated on the merits” and thus subject to the
“restrictive standard of review” set out in § 2254(d). See Johnson v. Williams,

U.S.

, 133

S.Ct. 1088, 1091 (2013).
Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington, 131 S.Ct.
at 786. In other words, to obtain federal habeas relief under that provision, the state prisoner
must show that the state court ruling on the claim presented “was so lacking in justification that

5

there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786–87.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher,

U.S.

, 132 S.Ct. 38, 44–45 (2011); cf. Otte,

654 F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)) (in evaluating the merits
of a claim addressed by the state courts, the federal habeas court must “look to Supreme Court
cases already decided at the time the state court made its decision”). In Greene, 132 U.S. at 44,
the Court explained:
[W]e held last term in Cullen v. Pinholster, 563 U.S.
, 131 S.Ct. 1388, 179
L.Ed.2d 557 (2011), that review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the prisoner’s claim on the merits. We
said that the provision’s “backward-looking language requires an examination of
the state-court decision at the time it was made.” Id., at , 131 S.Ct. at 1398. The
reasoning of Cullen determines the result here. As we explained, § 2254(d)(1)
requires federal courts to “focu[s] on what a state court knew and did,” and to
measure state-court decisions as of ‘the time the state court renders its decision.’”
Id., at , 131 S.Ct. at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .;
emphasis added).
Decisions by lower courts are relevant “to the extent [they] already reviewed and
interpreted the relevant Supreme Court case law to determine whether a legal principle or right
had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of
clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed
to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.”
McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
The Ohio Court of Appeals was the only state court to issue a reasoned decision
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addressing the merits of petitioner’s assignment of error challenging the sufficiency and manifest
weight of the evidence. The court rejected both claims, providing the following summary of the
testimony at trial and reasoning in support of its decision:
{¶ 5} . . . Gulleman’s mother, Jamie Gulleman, testified that her son had had a
drug problem, and that she had identified him from a photograph shown to her by
police officers.
{¶ 6} Khristina Willis testified that she had lived in Winton Terrace in February
2010. Willis stated that on the night of September 25, 2010, she had been
walking to a store in the neighborhood and had seen Harris pull out a gun and ask
a group of people “where the money and weed at.” According to Willis, she
knew Harris through his mother. Willis stated that she believed that Harris and
another black male had been committing a robbery. After seeing Harris pull out a
gun, Willis had run down the street to her neighbor’s house. As Willis was
running to her neighbor’s house, she had seen Harris and the other man going
toward a street known as “Long Craft.” Willis estimated that she had been at her
neighbor’s house for approximately ten minutes when she heard shots ring out
from the direction where Harris had been headed. Willis then had seen Harris and
another man jumping a fence near a parking lot.
{¶ 7} Police officer Benjamin Miller testified that in the early morning hours of
September 26, 2010, he had gone to a parking lot behind a building at 112 Craft
Street in Cincinnati in response to a report of shots having been fired. Miller
testified that 112 Craft Street was on the portion of street commonly referred to in
the neighborhood as “Long Craft.” According to Miller, when he and his partner
responded to the parking lot, they had found a gunshot victim slumped over in the
driver seat of a white, four-door sedan. Miller testified that the victim was
unresponsive, and that he and his partner had called for paramedics at that time.
Miller remained at the scene to ensure that no one disturbed the crime scene.
{¶ 8} Dr. William Ralston, chief deputy coroner for Hamilton County, testified
about the autopsy that he performed on Gulleman. Ralston stated that Gulleman
had been shot eight or nine times and that all of the bullets had traveled from right
to left. Ralston stated that the results of the autopsy were consistent with the
bullets having been fired from the passenger side of the car.
{¶ 9} The state next called Sherron Peoples to testify. Peoples stated that he
knew both Harris and Bennie, and that he had known Harris all his life. On the
night of the shooting, Peoples was in a car in the same parking lot where
Gulleman was shot. Peoples testified that he had seen Gulleman pull into the
parking lot in a white car. After Gulleman had parked his car, Peoples had seen
Harris and Bennie walk into the parking lot and go toward Gulleman’s car.
During his trial testimony, Peoples stated that he did not know who had gotten
into the car. But he conceded at trial that he may have told police that he had seen
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Harris get in the car, and that he had heard gunshots. After hearing the gunshots,
Peoples had seen Harris and Bennie leaving the parking lot. Peoples stated that
he may have told police officers that he had seen a gun in Harris’s hand, and that
he had known Harris to carry a .45–caliber gun.
{¶ 10} Police officer David Landesberg identified photographs that he had taken
at the scene of the shooting. According to Landesberg, police officers had
recovered $210 that had been found under Gulleman’s left leg. Landesberg also
testified that a pellet gun had been found under the passenger seat of Gulleman’s
car. When asked about the gun by Harris’s counsel, Landesberg stated that it
looked like a real firearm, and that it had been completely concealed under the
passenger seat.
{¶ 11} Police sergeant Jeff Hunt testified that he had been dispatched to arrest
Harris for suspicion of Gulleman’s murder. Hunt stated that Harris’s cellular
telephone had been recovered from one of his pockets and that a bag of bullets
had been recovered from the apartment where Harris had been found. According
to Hunt, the bullets in the bag appeared to be .45–caliber bullets.
{¶ 12} Over the objection of defense counsel, Dr. Carla Dreyer, a psychologist,
testified that Harris had been referred to the court clinic by the trial court for an
evaluation of his competency to stand trial and for a determination of whether he
had been legally insane at the time of the shooting. Dreyer testified that Harris
was competent to stand trial and that he did not meet the criteria for a not-guiltyby-reason-of-insanity plea. Dreyer testified that in her opinion, Harris “was
malingering both cognitive and psychiatric difficulties.” Dreyer explained that
malingering meant “feigning or exaggerating, so basically making up or
exaggerating already existing symptoms to seem worse than they are.”
{¶ 13} Gary Brown testified that he had been in the Hamilton County Justice
Center while Harris and Bennie were held there. According to Brown, Harris had
told him that “[Gulleman] had that roll on him and he act like he didn’t want to
give it up.” Brown stated that, to him, that meant, “like if someone is robbing
you, you hesitating to, you know, give up what they ask for.” Brown testified that
Harris had stated that a woman had “rolled over on him,” and that Harris had said
he would “blam” her. The assistant prosecutor then asked, “Did [Harris] make
any statement about what he had done to the guy that wouldn't give him the roll?”
And Brown replied, “He said he blammed him, but he didn’t go off into detail
about where he shot him at or what he shot him with, or—he didn’t go on off into
that. But blam, blam basically means shoot, shoot someone.”
{¶ 14} Tobias Johnson and Harris were housed in the same pod in the justice
center. Johnson testified that Harris had discussed his case with him and had told
Johnson that he planned to act like he was crazy to try to avoid the charges against
him. According to Johnson, Harris had told him two versions of what had
happened the night that Gulleman was shot. In the first story, Harris stated that
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another person, who went by the nickname “B,” was going to sell Gulleman some
heroin. B had run out of heroin, so Harris had lied and said he had Oxycontin and
arranged to meet Gulleman. According to Johnson, Harris had gone to the
parking lot to rob Gulleman. Johnson stated that Harris had told him that when he
had pointed a gun at Gulleman, Gulleman had begun to cry and had said that he
had planned on robbing Harris. Harris had then gotten out of the car and shot
Gulleman as Harris was exiting from the car. In the second version of the story
that Harris allegedly told Johnson, Harris had gone to the parking lot to rob
Gulleman. There was no mention of Gulleman having stated that he had also
planned to rob Harris.
{¶ 15} Antonio Gray had also met Harris in the justice center. According to
Gray, Harris had told him that he was going to plead insanity first, and if that did
not work, he was going to say that he had not been there when the shooting
happened. Gray also testified that Harris had told him about the shooting: “And it
was supposed to be, you know I guess a robbery because he was supposed to have
85 Oxycontin pills, Mr. Harris did, and he was going to rob, you know Mr.
Gulleman. But it did not go as planned because Mr. Gulleman didn’t want to give
up the money.” According to Gray, Harris told him that because Gulleman had
not given him the money, Harris had shot him.
{¶ 16} Derrell Anderson testified that he had met Harris in the justice center.
According to Anderson, Harris had told him “that a murder happened in the first
right court on Craft Street, that he was robbing the guy. It was the guy that came
down there to meet somebody else for some drugs. And he went and instead of
giving him the drugs he robbed the guy.”
{¶ 17} Harris took the stand in his own defense. Harris testified that on
September 25, he had gone to the parking lot to sell Gulleman some Oxycontin.
According to Harris, Gulleman had started to hesitate before paying for the pills.
Harris testified that
[Gulleman] said something, he left something in the back. So I am like—I
am already watching it, because I know how a lick will do as you pull off
or they’ll either come and rob a person late night or do anything, so I am
already like watching him, what he’s doing. So I am looking back. The
whole time his body is turned towards the back seat and he was doing
something under the seat, so I looked back. I’m like, what you doing,
man? He just kept hesitating and trying to take my attention off of him
giving me the money, because I had the pills already to sell him. So I look
back and I see what he was grabbing, and I just—I got out. I ran, I started
shooting.
Harris claimed that he had seen what he believed to be a real gun in Gulleman’s
backseat.
...
9

{¶ 36} The fifth assignment of error is that his convictions were based on
insufficient evidence and were against the manifest weight of the evidence.
Harris also asserts that the trial court erred when it denied his Crim. R. 29 motion
for an acquittal.
{¶ 37} The standard of review for a sufficiency claim and for the denial of a
Crim. R. 29 motion for an acquittal is the same. When an appellant challenges the
sufficiency of the evidence, we must determine whether the state presented
adequate evidence on each element of the offense. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). On the other hand, when reviewing
whether a judgment is against the manifest weight of the evidence, we must
determine whether the jury clearly lost its way and created a manifest miscarriage
of justice. Id. at 387. Because we are reversing Harris’s convictions for
aggravated murder and aggravated robbery, we need not consider whether those
convictions were against the manifest weight of the evidence.
{¶ 38} Harris was convicted of aggravated murder in violation of R.C.
2903.01(B), which provides that “[n]o person shall purposely cause the death of
another * * * while committing or attempting to commit, or while fleeing
immediately after committing or attempting to commit, * * * aggravated robbery,
[or] robbery.” He was also convicted of aggravated robbery in violation of R.C.
2911.01(A)(1).
{¶ 39} Harris admitted that he had shot Gulleman. But during trial he denied that
he had tried to rob Gulleman. He now contends that the state did not present
sufficient evidence of a robbery or attempted robbery. We disagree. State
witnesses testified that Harris had told them that he had intended to rob Gulleman.
The jury was in the best position to determine the credibility of those witnesses.
Further, that Gulleman was found with $210 under his body and that his wallet
was still in the car after the shooting does not negate the circumstantial evidence
that Harris had attempted to rob Gulleman before shooting him. We conclude that
the state presented sufficient evidence of aggravated murder, aggravated robbery,
and having weapons while under disability. And the jury did not lose its way
when it found Harris guilty of having weapons while under a disability. The fifth
assignment of error is overruled.
(Doc. 1, Ex. 4, PageID 3–8, 14–16).
After review of the record in this case, the undersigned finds that petitioner is not entitled
to habeas relief based upon his sufficiency of evidence claim. The clearly-established standard
of review for evaluating the merits of constitutional claims challenging the sufficiency of the
evidence was established by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). As

10

the Supreme Court held in Jackson, because the Due Process Clause requires the State to prove
beyond a reasonable doubt every fact necessary to constitute the charged offense, In Re Winship,
397 U.S. 358, 363–64 (1970), “the relevant question” in assessing the sufficiency of the evidence
“is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319 (emphasis in original).
Under the Jackson standard, the State is not required to rule out every hypothesis except
that of guilt beyond a reasonable doubt. Id. at 326. Rather, “a federal habeas corpus court faced
with a record of historical facts that supports conflicting inferences must presume—even if it
does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” Id.; see also Walker v. Engle, 703
F.2d 959, 969–70 (6th Cir. 1983). It is the responsibility of the trier of fact to resolve conflicts in
testimony, to weigh the evidence and to draw reasonable inferences from the evidence. Jackson,
443 U.S. at 319. Consequently, the reviewing court is not permitted to reweigh the evidence,
reevaluate the credibility of witnesses, make its own subjective determination of guilt or
innocence, or otherwise substitute its opinion for that of the jury. See id. at 318–19 & n.13; see
also United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009)); York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988) (per curiam).
“Circumstantial evidence alone is sufficient to support a conviction.” Newman v.
Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (quoting Johnson v. Coyle, 200 F.3d 987, 992 (6th
Cir. 2000)); see also Fisher, 648 F.3d at 450. Due process is satisfied as long as such evidence is
enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a
reasonable speculation that the petitioner is guilty of the charged crime. Newman, 543 F.3d at

11

796–97 (and Sixth Circuit cases cited therein).
Moreover, federal habeas review of a claim challenging the sufficiency of the evidence is
even further limited. As the Sixth Circuit explained in Brown, 567 F.3d at 205, the federal
habeas court is “bound by two layers of deference to groups who might view facts differently
than [the habeas court] would.” The federal habeas court must defer not only to the trier of
fact’s findings as required by Jackson, but under 28 U.S.C. § 2254(d), must also “defer to the
state appellate court’s sufficiency determination as long as it is not unreasonable.” Id. (emphasis
in original); see also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011), cert. denied, 132 S.Ct.
1927 (2012); Anderson v. Trombley, 451 F. App’x 469, 474-75 (6th Cir. 2011). Therefore, as the
Sixth Circuit went on to emphasize in Brown:
[W]e cannot rely simply upon our own personal conceptions of what evidentiary
showings would be sufficient to convince us of the petitioner’s guilt. We cannot
even inquire whether any rational trier of fact would conclude that petitioner . . .
is guilty of the offenses for which he was charged. Instead, we must determine
whether the Ohio Court of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find [the petitioner] guilty beyond a reasonable doubt
based on the evidence introduced at trial.
Brown, 567 F.3d at 205 (emphasis in original).
Applying the double-layer deferential standard to the case-at-hand, the undersigned is
convinced that the Ohio Court of Appeals’ sufficiency determination is neither contrary to nor an
unreasonable application of Jackson. In order to carry its burden of proof on petitioner’s
aggravated robbery conviction, the prosecution was required to prove that petitioner, in
attempting or committing a theft offense or fleeing immediately after the attempt or offense, had
a deadly weapon on or about his person and displayed, brandished, indicated possession of, or
used the deadly weapon. Ohio Rev. Code § 2901.11(A). In order to sustain his aggravated
murder conviction, the prosecution had to prove that petitioner purposely caused the death of

12

another while committing, attempting to commit, or fleeing immediately after committing or
attempting to commit aggravated robbery. Ohio Rev. Code § 2903.01(B).
In this case, petitioner claims that there was not legally sufficient evidence to prove that
he committed or attempted to commit a robbery for purposes of the aggravated robbery and
aggravated murder convictions. However, as noted above, Gary Brown, Tobias Johnson,
Antonio Gray, and Derrell Anderson all testified as to comments made by petitioner while
incarcerated at the Hamilton County Justice Center (HCJC) regarding his robbing Gulleman.
Brown testified that petitioner told him that Gulleman had a large sum of money on him and that
when he refused to “give it up,” petitioner shot him. (Doc. 3, Transcript at PageID 1196).
Johnson similarly testified that petitioner told him that he got money by telling drug users that he
had Oxycontin pills for sale and then robbing them. He further stated that petitioner told him
that he met with Gulleman in order to rob him. (Id. at 1266, 1271). According to Gray,
petitioner also told him that he intended to rob Gulleman and petitioner shot him because he did
not give him the money. (Id. at 1300). Finally, Anderson testified that petitioner said he robbed
a guy looking for drugs and that he shot him. (Id. at 1387–88).
In sum, not one, but four witnesses provided uniform testimony that petitioner intended
to rob Gulleman and shot him in the process. Based on this evidence the Ohio Court of Appeals
reasonably determined that the prosecution offered sufficient evidence to establish the robbery
element underlying both convictions. Although petitioner testified that he did not intend to rob
Gulleman and that the incident was simply a drug-deal gone bad, the appeals court correctly
noted that the jury is in the best position to determine the credibility of the witnesses at trial.
Similarly, although petitioner argues that jailhouse informants receiving case consideration are
inherently untrustworthy, it is not the province of this court to assess the credibility of witnesses

13

or to reweigh the evidence on habeas review. See Matthews v. Abramajtys, 319 F.3d 780, 788
(6th Cir. 2003) (noting that a habeas court “does not reweigh the evidence or redetermine the
credibility of the witnesses whose demeanor has been observed by the trial court”).
Nevertheless, petitioner maintains that insufficient evidence was presented at trial to
establish that he intended to commit or attempted a robbery, as he claims the only evidence
admitted in this regard were his extra-judicial statements. For support petitioner relies on the
Supreme Court’s decision in Opper v. United States, 348 U.S. 84 (1954). The rule announced in
Opper—the so-called corroboration rule—is that “a defendant cannot be convicted based solely
on her uncorroborated statements or confessions.” United States v. Ramirez, 635 F.3d 249, 256
(6th Cir. 2011) (citing Smith v. United States, 348 U.S. 147, 153–54 (1954); Opper, 348 U.S. at
89, 93). The government generally satisfies the rule upon introducing “substantial independent
evidence which would tend to establish the trustworthiness of the statement.” Opper, 348 U.S. at
93. However, the independent corroborating evidence does not need to itself prove the offense
beyond a reasonable doubt or even prove each element of the offense. United States v. Brown,
617 F.3d 857, 862 (citing Smith, 348 U.S. at 156; United States v. Trombley, 733 F.2d 35, 37
(6th Cir. 1984)). “Rather, the purpose of the corroboration is merely to ensure the reliability of
the confession or admission of the accused.” Brown, 617 F.3d at 862 (quotation marks and
citation omitted). “So long as portions of the defendant’s statements are corroborated by
‘substantial independent evidence’ that ‘tend[s] to establish the trustworthiness of the statement,’
then the elements of the crime may be established by the defendant’s statements.” Ramirez, 635
F.3d at 257 (quoting Opper, 348 U.S. at 93). In determining whether a statement is sufficiently
corroborated the Court views the evidence in light most favorable to the government. Id. (citing
United States v. Pennell, 737 F.2d 521, 537 (6th Cir. 1984)).

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After careful review of the record in this case, the undersigned finds that petitioner’s
extra-judicial comments were sufficiently corroborated by independent evidence. First, the
HCJC witnesses’ testimony that petitioner stated that he shot Gulleman after he would not give
petitioner his money is corroborated by the independent evidence that Gulleman was found shot
to death in his car with $210 dollars concealed under his leg. (See e.g., Doc. 3, Transcript at
PageID 947–48).
In addition, Khristina Willis testified that shortly before the Gulleman shooting she
observed petitioner committing a separate robbery, by pulling a gun on several individuals and
asking “where the money and weed at?” (Doc. 3, Transcript at PageID 698, 700, 709). Viewed
in the light most favorable to the prosecution, Willis’s testimony provides independent
corroboration for petitioner’s comment to Johnson that robbing drug users is how he made his
money. (See id. at 1266).
Other independent testimony lends support to the truthfulness of petitioner’s statements
to the HCJC witnesses. With regard to the shooting, Johnson and Anderson both testified that
petitioner told them that he shot Gulleman several times with a “45 automatic.” (Id. at 1270–71,
1388). Independent testimony at trial revealed that the victim was in fact shot eight to nine times
with a .45 caliber weapon—a fact that was not publicly disclosed during the course of the
investigation. (Id. at 796, 1310–12). Petitioner also told Gray that he changed the SIM card in
his cell phone several times because he knew he was the last person to text Gulleman before the
shooting. (Id. at 1301). Detective Tim Gormly’s testimony confirmed that the telephone records
showed that petitioner was texting with Gulleman just prior to his death and that petitioner used
four different SIM cards around the time of the shooting. (Id. at 1301, 1343). Finally, Johnson’s
testimony that petitioner told him that he saw a toy gun in Gulleman’s car (id. at 1270) was

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bolstered by petitioner’s own trial testimony that he shot Gulleman after he allegedly reached for
a fake gun. (Id. at 1424–25).
Viewing the record in the light most favorable to the prosecution, the undersigned finds
sufficient independent corroborating evidence that tends to establish the trustworthiness of
petitioner’s statements to the HCJC witnesses. Therefore, the Ohio Court of Appeals properly
considered petitioner’s statements in determining that petitioner’s convictions for aggravated
robbery and aggravated murder were supported by sufficient evidence. Taking into
consideration the testimony of the HCJC witnesses—who unanimously testified that petitioner
said he robbed Gulleman—the Ohio Court of Appeals reasonably determined that the
prosecution offered sufficient evidence to prove that petitioner committed or attempted to
commit a robbery. The Ohio Court of Appeals’ adjudication of petitioner’s sufficiency of
evidence claim involved a reasonable application of the Jackson standard and was based on a
reasonable determination of the facts in light of the evidence presented at trial. Furthermore,
because petitioner’s aggravated robbery and aggravated murder convictions were supported by
sufficient evidence, his retrial on these charges does not present a double jeopardy violation.
Accordingly, in sum, the undersigned concludes that petitioner is not entitled to habeas
relief. Having found that petitioner’s sufficiency of evidence claim is without merit, petitioner’s
double jeopardy claim is also without merit. 1
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1)
be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the claims alleged in the

1

Petitioner has requested oral argument on the issues presented in the habeas petition. (Doc. 6, PageID 1698–99).
However, for the reasons stated herein, the Court finds a hearing unnecessary to resolve the petition.

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petition, which have been addressed on the merits herein, because petitioner has not stated a
“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to
deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and, therefore, should
DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: May 13, 2015

s/ Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOSEPH HARRIS,
Petitioner,

Case No. 1:15-cv-189
Black, J.
Litkovitz, M.J.

vs.
HAMILTON COUNTY
SHERIFF, et al.,
Respondents.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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