Poulson v. Warden Ross Correctional Institution

Filing 28

ORDER ADOPTING Report and Recommendations re 17 Report and Recommendations, OVERRULING petitioners objections. The petition for a writ of habeas corpus is DENIED and this case is DISMISSED. Signed by Judge Algenon L. Marbley on 6/24/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LOWELL P. POULSON ,

CASE NO. 2:11-cv-1067

Petitioner,

JUDGE ALGENON L. MARBLEY

v.

Magistrate Judge Kemp

WARDEN, ROSS CORRECTIONAL
INSTITUTION.
Respondent.
OPINION AND ORDER
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. §2254. On September 25, 2012, the Magistrate Judge recommended that the case be
dismissed on its merits. Petitioner has filed an objection to that recommendation. For the
following reasons, the objection will be OVERRULED and this case will be DISMISSED.
I. STANDARD OF REVIEW
When objections are received to a Magistrate Judge's Report and Recommendation on a
dispositive matter, the assigned District Judge "shall make a de novo determination ... of any
portion of the magistrate judge's disposition to which specific written objection has been made
...." Fed. R. Civ. P. 72(b). After review, the District Judge "may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the matter to the magistrate judge
with instructions." Id.; see also 28 U.S.C. §636(b)(1)(B). General objections are insufficient to
preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has
the same effects as would a failure to object." Howard v. Secretary of Health and Human
Services, 932 F.2d 505, 509 (6th Cir. 1991).

II. BRIEF BACKGROUND OF THE CASE
Petitioner was charged with and convicted of robbing a Donato’s Pizza restaurant on
Noe-Bixby Road on the east side of Columbus on December 10, 2008. According to the various
witnesses, including several employees of the restaurant who were herded into a back room at
gunpoint and kept there while the robbery took place, there were two robbers, both wearing
masks, and identifying them was therefore difficult. As more fully discussed below, however,
one of these witnesses, Keri Richardson, said she could identify the man who held her at
gunpoint by his eyes, and she picked petitioner’s photograph out of photo array within days of
the robbery and identified him in court. There was circumstantial evidence suggesting
petitioner’s involvement in the robbery, including the undisputed fact that his truck was the
getaway vehicle (it was stopped by police shortly after the robbery but neither of its occupants
was apprehended at that time) and the fact that DNA matching a long-time acquaintance of
petitioner’s was found on a ski mask in the truck. On the other hand, petitioner presented a
number of alibi witnesses and strongly contested Ms. Richardson’s identification of him as one
of the robbers. The jury ultimately resolved these issues in favor of the state and found
petitioner guilty. He received an aggregate sentence of fourteen years in prison due to
convictions on a related weapons charge and on a firearm specification.
Petitioner challenged his conviction on appeal, contending both that the evidence was
insufficient to convict him and that Ms. Richardson’s identification of him was unreliable and
should have been suppressed, and he raises those same two issues in this Court. The state court
of appeals’ discussion of and disposition of these issues is set forth both in that court’s opinion,

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see State v. Poulson, 2010 WL 3011081 (Franklin Co. App. Aug. 3, 2010), and in the Report and
Recommendation (Doc. 17), and the Court will not repeat it in detail in this Opinion and Order
except as necessary to explain why the Report and Recommendation concluded (as it did) that
the state court’s determination of these issues was not contrary to, or an unreasonable application
of, federal law - the standard of review prescribed in 28 U.S.C. §2254(d), which prohibits a
federal court from overturning a state conviction unless the state court’s adjudication of a federal
constitutional issue “(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.” See also Williams v.
Taylor, 529 U.S. 362 (2000).
III. THE REPORT AND RECOMMENDATION
The Report and Recommendation first concluded that, contrary to Respondent’s
argument, the claim attacking the constitutional sufficiency of the evidence was not procedurally
defaulted because it was presented to the state courts not just as a claim that the conviction was
against the manifest weight of the evidence, but a claim based on the Due Process Clause of the
Fourteenth Amendment. Respondent has not objected to that determination, and it appears to be
correct, so this Court will also reach the merits of both of petitioner’s claims.
The Report and Recommendation also noted that the analysis of the sufficiency of the
evidence differs depending upon whether Ms. Richardson should have been permitted to identify
petitioner as one of the robbers. Therefore, it addressed that claim first. This Court will do
likewise.

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A. Eyewitness Identification
The state court of appeals concluded that under applicable federal precedent, particularly
Neil v. Biggers, 409 U.S. 188 (1972) and Manson v. Brathwaite, 432 U.S. 98 (1977), the trial
judge did not abuse his discretion by admitting Ms. Richardson’s identification testimony. That
court held that the proper procedure to follow on review of this type of claim is to weigh the
testimony against the five indicia of reliability set forth in Neil v. Biggers, and then to consider
against these factors “[t]he corrupting effect of any suggestive identification procedure ....” State
v. Poulson, 2010 WL 3011081, *8 (Franklin Co. App. Aug. 3, 2010). In a detailed analysis
quoted in the Report and Recommendation, the court of appeals concluded, first, that each of the
five Neil factors - “the opportunity of the witness to view the criminal at the time of the crime,
the witness' degree of attention, the accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between the crime and the
confrontation,” see id., weighed in favor of admitting the testimony. Next, the court of appeals
reviewed the identification procedure - a photo array - and concluded that it was not suggestive,
and that proper procedures had been followed by Detective Longworth when he assembled the
array and showed it to Ms. Richardson. Consequently, applying what it described as a “totality
of the circumstances” approach, the state court held that no error was committed when the trial
court permitted Ms. Richardson to testify that petitioner was the man who held her at gunpoint
during the robbery. Id. at 10.
There is no question that the state court identified the key cases from the United States
Supreme Court which deal with the issue of when the admission of an unduly suggestive or
unreliable identification by an eyewitness violates the Due Process Clause. See, e.g., Howard v.

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Bouchard, 405 F.3d 459, 481 (6th Cir. 2005). Consequently, the question for this Court is
whether the state court’s application of the principles set forth in those cases was unreasonable
given the set of facts with which the state court was presented. Before turning to that question,
however, the Court will address an issue which petitioner raises in his objections concerning the
applicability of United States v. Wade, 388 U.S. 218 (1967) to this case.
United States v. Wade dealt with a post-indictment lineup - that is, a line-up which
occurred only after the defendant had been indicted and after counsel had been appointed to
represent him. Counsel was not notified that the lineup would be conducted. Defendant, who
was accused of robbing a bank, was picked out of the lineup by two bank employees, and they
identified him at trial. The Supreme Court held that they should not have been allowed to do so
because such a lineup is a “critical stage” of the proceedings and the defendant was unduly
prejudiced by the absence of his counsel at the lineup.
Undoubtedly, the issues relating to suggestive identification procedures are not confined
to line-ups, and a witness can be misled into making an incorrect identification during other
types of identification procedures, including photo arrays. However, Wade, which is primarily a
Sixth Amendment case, has never been applied to photo arrays, and particularly not to those
which occur prior to the time that a suspect is charged and the right to counsel attaches. See,
e.g., United States v. Jackson, 304 Fed. Appx. 424, 430 n.1 (6th Cir. December 23, 2008) (“the
defendant's claim that identification evidence should have been suppressed under United States
v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), is without merit because he was
identified in a photo array and not in a corporeal line-up”). Thus, the fact that neither petitioner
nor his counsel was present when the photo array was shown to Ms. Richardson is not an

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independent constitutional violation, nor did the state court err in any way by failing to apply
Wade to petitioner’s claims on appeal.
Before addressing petitioner’s claim directly, the Court notes that, under controlling
Sixth Circuit precedent, the analysis of a claim of improper identification procedures follows a
definite order of decision-making. “The court first considers whether the [identification]
procedure was unduly suggestive.” Ledbetter v. Edwards, 35 F.3d 1062, 1070-71 (6th Cir. 1994).
If not, the inquiry is at an end. However, “[i]f the court does find that the procedure was unduly
suggestive, it next evaluates the totality of the circumstances to determine whether the
identification was nevertheless reliable.” Id. at 1071. The five indicia of reliability identified in
Neil v. Biggers come into play only at that step. Id. Here, the state court reversed the order of
decision-making, analyzing the Neil factors first and then determining that the photo array
procedure was not unduly suggestive. State v. Poulson, 2010 WL 3011081, at *8-9. This order
of analysis actually favors the defendant, so even though it does not strictly conform with the
procedure which this Court would follow in reviewing such a claim, it cannot be characterized as
an unreasonable application of federal law.
Taking the issues in the order prescribed by Ledbetter, the state court found that the
photo array procedure was not unduly suggestive. It focused on these factors: (1) that the array
shown to Ms. Richardson was “computer-generated”; (2) that “the other five photographs were
all reasonably close in appearance to appellant’s photograph”; (3) that “[t]he photo of appellant
did not stand out from all of the photos”; (4) that “Detective Longworth followed correct photo
array procedures”; (5) that “[t]he photos were arranged in no particular order of importance”;
and (6) that “it was never suggested to Richardson that she was required to pick someone from

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the photo array.” State v. Poulson, supra, at *9.
Petitioner argues that each of these findings is incorrect, and unreasonably so in light of
the uncontroverted evidence presented at trial. He points out that, as to the first of the state
court’s findings, although the computer suggested the photos to be used, Detective Longworth
selected the five other photographs himself from a larger group generated by the computer, and
he did not include any Caucasian or Hispanic subjects even though several of the witnesses
suggested that the lighter-skinned of the two robbers might not have been African-American. As
to the second finding, he contends that it is apparent from the array itself that he was the only
light-skinned subject, making him stand out from the rest. As to the third finding, he claims that
his picture, which was placed in the center of the top row, stood out like a beacon. As to the
fourth finding, he notes that the prescribed procedure for photo arrays required that a written
explanation be given to and signed by the witness before the array is shown, but that in this case
Detective Longworth did not present that information to Ms. Richardson until after she had
viewed the array and selected his photograph. On the fifth point, he again notes the placement of
his picture in the center of the top row. Finally, on the sixth point, he argues that all of these
other flaws in the process lead inescapably to the conclusion that Ms. Richardson was
encouraged, and practically required, to pick him out of the array.
The facts in this case are more or less as petitioner claims them to be, with a few
exceptions. First, this Court does not view the photo array itself as clearly suggesting a suspect;
there is a good deal of resemblance between petitioner’s photo and the other five, although one’s
eyes might be drawn to his picture first because of its placement and because there is light
reflected from his forehead in a way which is somewhat different from the other photos. It is

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true that Detective Longworth did choose not to include any non-African-Americans in the array.
It is not as clear as petitioner claims that proper procedure was not followed; Detective
Longworth testified that he read the photo array form to Ms. Richardson before she looked at the
pictures and explained to her that they were not placed in any particular order and that she was to
look at all six. (Trial Transcript, at. 6). She testified that she was asked to look at the photos
and to tell him if she recognized anyone, and that although he “didn’t go over a statement,” he
“showed me a paper.” (Tr. 79). She also affirmed that he did not tell her that the suspect was in
the array. (Tr. 82). One additional fact, which may have some significance, is that she was
shown another photo array before this one and did not select anyone’s picture from that array.
After considering petitioner’s arguments, which would be good arguments to have made
to the jury concerning the weight to be given to Ms. Richardson’s claimed identification of him,
the Court cannot say that the state court unreasonably determined the issue of suggestiveness.
The law does not regard every difference in the pictures of a suspect and others in the array as
suggestive. As one court has noted, “[t]he due process clause does not require law enforcement
officers to scour about for a selection of photographs so similar in their subject matter and
composition as to make subconscious influences on witnesses an objective impossibility.”
United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977). If the skin tone difference was
dramatic, the array could be suggestive, see, e.g., Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir.
1986), but it does not appear to this Court that the differences in the photos in this array are so
dramatic as to suggest that only petitioner could have been the suspect. As Detective Longworth
testified, and this testimony is borne out by the array, although the complexions of some of the
persons whose pictures were selected were darker than petitioner’s, there were “a couple that are

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pretty close” and petitioner’s complexion was only “a slight shade lighter.” (Tr. at 12). Courts
have also held that the placement of a suspect’s picture in the top center position does not
support a claim of improperly suggestive procedures. See United States v. Burdeau, 168 F.3d
352 (9th Cir. 1999). There is also nothing in this record to support the claim that because of a
minor discrepancy between Detective Longworth’s testimony and Ms. Richardson’s concerning
what, exactly, he told her, the state courts should have found the procedure tainted. Neither of
those witnesses’ testimony suggests in any way that she was told something which made her
focus on petitioner’s photograph, and she specifically testified to the absence of any such
coaching. As this Court has stated, “photo arrays generally become unnecessarily suggestive
only when the officer conducting the array directs the witness to pick one specific photograph or
otherwise indicates which photograph is the suspect ....” United States v. Mathis, 2008 WL
1990443, *7 (S.D. Ohio May 2, 2008). There is no evidence of that type of conduct here.
Even if the state court was wrong, and unreasonably so, on the issue of whether the photo
array procedure was unduly suggestive, this Court could not grant relief unless the Neil v.
Biggers factors also point in the direction of an unreliable identification. The state court found
that all five factors favored admissibility of Ms. Richardson’s testimony; again, petitioner argues
that each of these separate determinations was unreasonable in light of the facts of record.
The state court found that Ms. Richardson’s testimony was reliable because: (1) she had
a good opportunity (three to four minutes or more) to observe petitioner’s face (or what there
was visible of it under the ski mask); (2) she paid close attention to the features she could see;
(3) she provided an accurate description of those features to Detective Longworth immediately
after the robbery; (4) she expressed 100% certainty about her identification; and (5) she picked

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his photo out of the array within five days of the robbery. State v. Poulson, supra, at *8-9.
Petitioner argues that these findings do not comport with the record because: (1) Ms. Richardson
only had a matter of seconds within which to observe the robber; (2) her identification was
limited to the eyes and eyebrows of the suspect, and she misidentified the eyebrows, stating that
they had some gray in them (petitioner’s do not); (3) her description of petitioner was not
accurate, for the same reason, and no one else was able to identify him; (4) her “100% certain”
identification at the photo array was tainted by the suggestiveness of the procedures; and (5) at
the time she viewed the array, petitioner was not represented by counsel and counsel was not
present.
Here, the record is not nearly as clear as petitioner would have it. The witness who
estimated that only a matter of seconds elapsed between the time the robbers entered the store
and when they left was not in the back room. Ms. Richardson, who was, said that she was there
with the robber for “[a]bout a minute or two.” (Tr. 78). Her identification included skin tone,
which matched petitioner, and eye color and characteristics, as well as the statement petitioner
focuses on about the robber having had darker eyebrows with either a little bit of gray in them,
or of a grayish color. She gave the same description consistently, both immediately after the
incident and at other times. This Court has already concluded that there was little, if any,
suggestiveness about the photo array procedure. And finally, petitioner was not entitled to have
counsel present when the array was shown. Consequently, there is not much persuasive force to
his arguments on these factors. And even if this Court might disagree with the state court on one
or two of them, that does not mean that its balancing of these factors against a relatively nonsuggestive photo array procedure led to an unreasonable result.

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It is important to remember that, when a federal court reviews a claim like this in the
context of a habeas corpus action, it may not substitute its views for that of the jury in terms of
whether to credit eyewitness testimony, nor may it grant relief on a claim just because it
disagrees with the state courts about the law. Even in a case where a federal court may entertain
substantial doubt about the state court’s decision on some of the Neil v. Biggers factors, and
where the pre-trial identification proceeding was suggestive, the “AEDPA requires us to afford
wide latitude for the state court's determinations on the merits.” Grayer v. McKee, 149 Fed.
Appx. 438, 448 (6th Cir. September 9, 2005). Factual determinations such as those made by the
state court in this case cannot be overturned without clear and convincing evidence of their
inaccuracy. 28 U.S.C. §2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004).
Petitioner has presented cogent arguments, but there are good arguments to be made as well in
support of the state court’s determination of this claim. When that is the case, this Court is
powerless to grant relief.
B. Sufficiency of the Evidence
The Report and Recommendation began its analysis of this claim by stating, in a way not
challenged by petitioner:
A challenge to the sufficiency of the evidence, when made in a habeas corpus
petition subject to the AEDPA, must meet an exacting standard. As this Court
explained in Lynch v. Hudson, 2011 WL 4537890, *81-82 (S.D. Ohio September
28, 2011):
In Jackson v. Virginia [443 U.S. 307 (1979)], the United States
Supreme Court held that as a matter of fundamental due process, a
criminal conviction cannot stand unless each essential element is
proven beyond a reasonable doubt. 443 U.S. at 316. The Supreme
Court explained that when reviewing a challenge to the
constitutional sufficiency of the evidence supporting a criminal
conviction, “the relevant question is whether, after viewing the
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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.” Id. at 319. The Supreme Court
cautioned, with respect to the role of a reviewing court, that “[t]his
familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate
facts.” Id. Thus, after reviewing the evidence in a light most
favorable to the prosecution and respecting the trier of fact's role in
determining witnesses' credibility and weighing the evidence, a
federal court must grant habeas corpus relief “if it is found that
upon the record evidence at the trial no rational trier of fact could
have found proof of guilt beyond a reasonable doubt.” Id. at 324.
It is important to remember when reviewing a sufficiency of the
evidence challenge that this Court “do[es] not reweigh the
evidence, re-evaluate the credibility of the witnesses, or substitute
[its] judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191,
205 (6th Cir.2009). If the record contains credible, competent
evidence enabling a rational jury to find each essential element
beyond a reasonable doubt, then Petitioner's challenge to the
sufficiency of the evidence fails. Cf. Matthews v. Abramajtys, 319
F.3d 780, 788–89 (6th Cir.2003) (“The mere existence of sufficient
evidence to convict therefore defeats a petitioner's claim.”).
*Further, as the Sixth Circuit has explained, “[i]n a habeas
proceeding, however, we cannot simply conduct de novo review of
the state court's application of [the Jackson v. Virginia] rule, but
must review its sufficiency-of-the-evidence decision under the
highly deferential standard of the AEDPA.” Saxton v. Sheets, 547
F.3d 597, 602 (6th Cir.2008). In Tucker v. Palmer, 541 F.3d 652
(6th Cir.2008), the Sixth Circuit explained in more detail:
Accordingly, the law commands deference at two
levels in this case: First, deference should be given
to the trier-of-fact's verdict, as contemplated by
Jackson; second, deference should be given to the
Michigan Court of Appeals' consideration of the
trier-of-fact's verdict, as dictated by the AEDPA.
Id. at 656. See also Parker v. Renico, 506 F.3d 444, 448 (6th
Cir.2007); Nash v. Eberlin, 258 F. App'x 761, 765 (6th Cir.2007).
This Court recognizes, however, that “even after AEDPA, [the
Court] must ‘distinguish reasonable speculation from sufficient
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evidence’ when reviewing a state court's application of Jackson.”
Smith v. Romanowski, No. 07–1578, 2009 WL 1884451, at *6 (6th
Cir. Jul.1, 2009) (Moore, J., dissenting) (quoting Brown v. Palmer,
441 F.3d 367, 352 (6th Cir.2006)).
Report and Recommendation, at 21-23.
This Court agrees, primarily for the reasons set forth in the Report and Recommendation,
that the state court’s determination of the sufficiency of the evidence cannot be successfully
challenged here, especially given the fact that Ms. Richardson’s eyewitness identification of
petitioner was properly before the jury. Although petitioner, in his objections, asserts that “the
Prosecution presented not one single piece of evidence that, beyond a reasonable doubt,
establishes that the Petitioner participated in a robbery of a Donato’s restaurant,” Objections, at
17, as the Report and Recommendation correctly points out, the uncorroborated identification of
suspect by a victim of a crime is enough evidence on which to base a conviction. Hawkins v.
Coyle, 2004 WL 5708285, *59 (S.D. Ohio March 22, 2004), adopted and affirmed 2005 WL
1684022 (S.D. Ohio July 19, 2005), aff’d in part and rev’d in part 547 F.3d 540 (6th Cir. 2008).
There was also other circumstantial evidence, including the use of petitioner’s truck in the
robbery and the presence of broken glass (the window of his truck was broken by police officers
during the post-robbery stop of that vehicle) in his pocket. He has offered alternative
explanations for these facts and he called alibi witnesses at trial, but the jury chose not to credit
his explanations. His argument that the same person who took his truck “very well could have
been responsible for the robbery” and that Ms. Richardson’s statement that the light-skinned
robber reminded her of someone in the restaurant earlier that day (who turned out to be a
gentleman named Rogers) demonstrate that his attack, in legal terms, is not on the sufficiency of
the evidence that he was the perpetrator, but on the jury’s or the investigating officers’ failure to
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adopt a different plausible theory of who committed the crime. Again, given how difficult it is
to overturn a conviction on this ground when raised as part of a habeas petition, the Court cannot
base a favorable decision on these types of arguments. It must be abundantly clear, for petitioner
to prevail on his sufficiency of the evidence claim, that no rational juror could have believed the
eyewitness testimony nor reasonably inferred from the circumstantial evidence that petitioner
was the lighter-skinned robber, and that the state court’s contrary conclusion is itself
unreasonable. That does not describe the record here.
IV. DECISION
Based on the reasons stated by the Court in its Opinion and Order, the Court ADOPTS
the recommendation of the Magistrate Judge and OVERRULES petitioner’s objections. The
petition for a writ of habeas corpus is DENIED and this case is DISMISSED.
IT IS SO ORDERED.
DATED: June 24, 2013

s/Algenon L. Marbley
Algenon L. Marbley
United States District Judge

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