Davis v. Warden Southern Ohio Correctional Facility

Filing 24

ORDER AND REPORT AND RECOMMENDATIONS. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's Motion to Expand the Record (ECF No. 19 ) is DENIED. Signed by Magistrate Judge Norah McCann King on 11/2/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEVANDER DAVIS,
Petitioner,
Case No. 2:15-cv-00613
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
DONALD MORGAN, WARDEN,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition ECF No. 3), Respondent’s Return
of Writ (ECF No. 9), Petitioner’s Reply to Respondent’s Answer (ECF No. 20) (“Reply”), and the
exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that
this action be DISMISSED.
Petitioner’s Motion to Expand the Record (ECF No. 19) is DENIED.
Motion to Expand Record
Petitioner has filed a Motion to Expand the Record pursuant to Rule 7 of the Rules
Governing Section 2254 Cases in the United States District Courts1 to include the following
materials: documents relating to post conviction proceedings that occurred after the filing of the

1

 Rule 7 provides:

(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting
additional materials relating to the petition. The judge may require that these materials be authenticated.
(b) Types of Materials. The materials that may be required include letters predating the filing of the petition,
documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also
be submitted and considered as part of the record.

(c) Review by the Opposing Party. The judge must give the party against whom the additional materials are offered
an opportunity to admit or deny their correctness. 

1 

Return of Writ, “State’s Exhibit 43 (crime scene photo),” the transcript of his sentencing hearing,
docket sheets, and a notification to Petitioner from the Clerk of the Ohio Supreme Court
declining to file documents related to the appeal of his Rule 26(B) application. Id. (ECF No. 19).
Respondent has not responded to that motion.
The Court concludes that the materials sought by Petitioner are not necessary to the
resolution of this action. The petition for post conviction relief, and the trial court’s entry
denying that petition, are already included in the record before this Court, as is the trial court’s
Entry denying his petition for post conviction relief, the Ohio Supreme Court’s decision
declining to accept jurisdiction of the appeal, and various other exhibits that Petitioner has
attached to his Reply. Moreover, the decision of the state appellate court affirming the denial of
petitioner’s post conviction action is also available to this Court. State v. Davis, 15AP-518, 2015
WL 6522858 (Ohio App. 10th Dist. Oct. 29, 2015). Petitioner’s sentencing transcripts, and the
remaining items that he requests are not necessary to permit this Court to resolve Petitioner’s
claims or to determine whether Petitioner has committed a procedural default.

Further,

Petitioner could have submitted the letter that he apparently received from the Clerk of the Ohio
Supreme Court. Instead, he “cropped and pasted” only a portion of that letter to his Reply.
For all these reasons, Petitioner’s Motion to Expand the Record (ECF No. 19) is
DENIED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
On May 2, 2011, defendant was indicted on one count each of
murder, attempted murder, felonious assault, having a weapon
while under disability, and illegal possession of a firearm in a
liquor permit premises. Each charge also carried a firearm
2 

specification. Upon application of the assistant prosecuting
attorney, and for good cause shown, the trial court ordered that a
nolle prosequi be entered as to the illegal possession of a firearm in
a liquor permit premises charge. Following trial, defendant was
found guilty of the remaining charges in the indictment. The events
giving rise to the indictment occurred during the early morning
hours of March 8, 2012.
On March 8, 2012, defendant was a patron at Mike's Bar in
Columbus, Ohio. The area where Mike's Bar is located is a highcrime area known to have gang related activity. That night, there
were several patrons inside the bar near defendant, including
Brandon Houston, DeAndre Fagain, and Dimetri Evans, all of
whom testified at defendant's trial.
Houston testified that he was at the bar with his friends, Tumarcus
Steele, Donatello Taliaferro, Fagain, and a man named Al, whose
last name Houston did not know. According to Houston, there
were approximately 40 patrons inside Mike's Bar that evening.
Houston testified that he observed defendant at the bar with two
other men, neither of whom Houston knew: Tracy Ferguson, Jr.,
and a man with tattoos on his face who was later identified as
Evans. Shortly after Houston arrived, he saw defendant lift his shirt
and expose a gun. At the same time, Houston observed Ferguson
“throwing up gang signs in the mirror.” (Tr. 101.) At that time,
Evans approached Ferguson and tried to get him to stop. Instead,
Ferguson became more hostile and began arguing with Evans and
defendant. At that time, Houston observed defendant reach for his
hip and extend his arm. Houston heard the first gun shot at which
time he turned and ran into the bathroom. According to Houston,
he heard three gun shots, followed by silence and then additional
gunfire and screaming. Houston stayed in the bathroom until the
bar was quiet. Houston did not see defendant actually fire the gun
and did not see anyone get shot. As he left the bar, Houston
stumbled on a magazine clip from a gun which he pointed out to
police.
Fagain testified that he observed three people in the bar having an
argument, and described one of those men as trying to calm down
one of the other two men. Fagain observed defendant first hit
Ferguson and then pull out a gun and shoot Ferguson. Fagain
testified further that, after defendant shot Ferguson, defendant “just
started shooting up the club.” (Tr. 260.) Fagain testified that
defendant was the only one shooting at the time. When the
shooting began, Fagain turned to run and was shot several times.

3 

Evans was at the bar that night with defendant and Ferguson.
Evans' testimony corroborated Houston's testimony that Ferguson
was throwing up gang signs. Evans testified that he knew
defendant had several different guns, he knew defendant frequently
carried a gun, and sometimes carried more than one gun. Evans
testified that he saw defendant with a gun on the night in question,
and saw defendant shoot Ferguson.
Columbus Police Officer Jim Thiel was the first officer to arrive at
the scene. Officer Thiel saw four to five shell casings lying in the
entrance to the bar. Columbus Police Officer Timothy Mounts
testified that eleven 9mm spent shell casings were recovered from
the north end of the bar and that, in that same area, thirty-three 40
caliber spent shell casings were also recovered. It was determined
that the 9mm shell casings had been fired from a 9mm gun which
was later recovered from defendant. Columbus Police Officer
Kevin Jackson testified and identified photographs he took at the
scene. Columbus Police Detective Jacqueline Mitchell identified
evidence which she collected and logged, including a black
ammunition magazine clip found near the entrance to the bar.
Columbus Police Sergeant Jeff Matthias testified concerning the
circumstances surrounding defendant's arrest. At the time of his
arrest, defendant admitted that he had a gun in his waistband.
Sergeant Matthias identified the gun recovered from defendant as a
loaded 9mm Smith & Wesson. A ballistics expert determined that
the 9mm casings found at the scene were fired from defendant's
handgun. The 40 caliber handgun was never recovered.
The magazine clip Houston saw in the doorway was recovered and
was determined to be a 40 caliber handgun magazine clip. DNA
obtained from the magazine clip was compared to a sample of
defendant's DNA and it was determined that defendant was a
major contributor to the DNA on the magazine clip. During crossexamination, the forensic scientist who processed the DNA sample
explained that a major contributor “relates to the quantity of that
DNA being left on that item.” (Tr. 597.) The analyst also testified
that DNA can be transferred from one object to another.
Defendant's counsel called Columbus Police Detective Robert
Wachalec to testify. Detective Wachalec was the blind
administrator for a photo array presented to Fagain. In his report
regarding the photo array, Detective Wachalec indicated that
Fagain identified Evans as the shooter. Detective Wachalec
testified at trial that his summary of the identification was not

4 

accurate, because Fagain had actually identified defendant as the
shooter.
Following a sentencing hearing on January 18, 2012, defendant
was sentenced to serve 15 years to life for the murder conviction,
ten years for the attempted murder conviction, eight years for the
felonious assault conviction, three years for having a weapon while
under disability conviction, and three years for each firearm
specification. The trial court ordered that defendant serve the
attempted murder, felonious assault, and having a weapon while
under disability sentences concurrently to each other, but
consecutive to the murder sentence and consecutive to the firearm
specifications. The court merged two of the sentences for the
firearm specifications. The court further ordered that defendant
serve the sentence herein consecutive to a ten years prison sentence
from common pleas case No. 11CR–2202, for a total prison term
of 44 years to life.
II. ASSIGNMENTS OF ERROR
Defendant appeals and presents the following two assignments of
error:
[I.] THE TRIAL COURT ERRED BY OVERRULING
APPELLANT'S CRIM. R. 29 MOTION FOR JUDGMENT OF
ACQUITTAL, AND THEREBY DEPRIVED APPELLANT OF
DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH
AND FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE PROVISIONS
OF THE OHIO CONSTITUTION.
[II.] THE TRIAL COURT ERRED BY FINDING APPELLANT
GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF
THE OHIO CONSTITUTION BECAUSE THE VERDICT OF
GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
State v. Davis, No. 12AP-156, 2013 WL 3356569, at *1-3 (Ohio App. 10th Dist. June 28, 2013).
On June 28, 2013, the appellate court affirmed the judgment of the trial court. Id. On November
20, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Davis,
137 Ohio St.3d 1413 (Ohio 2013).

5 

On September 5, 2014, Petitioner filed an application to reopen the appeal pursuant to
Ohio Appellate Rule 26(B). (ECF No. 9-1, PageID# 252). Petitioner asserted that he had been
denied the effective assistance of appellate counsel because his attorney failed to raise the
following claims on appeal: DNA evidence was unconstitutionally introduced at trial; the trial
court improperly imposed consecutive terms of incarceration on firearm specifications
committed as a part of the same act or transaction; DNA evidence on the .40 caliber magazine
clip was improperly admitted; he was denied his right to due process by the admission of
photographic identification testimony into evidence; the trial court erred in overruling his motion
for judgment of acquittal; and his convictions were against the manifest weight of the evidence.
(PageID# 253-260). On November 21, 2013, the appellate court denied Petitioner’s Rule 26(B)
application. (PageID# 294). Petitioner filed a Motion to Certify Record to Supreme Court to
Resolve Conflict in regard to the second proposed assignment of error in his Rule 26(B)
application. (PageID# 298). On December 17, 2013, the appellate court denied that motion as
untimely. (ECF No. 311).
In June 2013, Davis filed a petition for post-conviction relief with
minimal evidence attached to the petition. . . .
The trial court judge filed a written decision on April 23, 2015
denying the petition for post-conviction relief. The trial court
wrote:
In the petition to vacate the judgment, Defendant argues that he
was denied effective assistance of counsel and that his DNA was
improperly seized. The Defendant failed to attach any evidence to
support either claim. In fact, the Defendant's claim regarding the
warrant for the DNA was improper is incorrect. Defendant makes
the claim that the warrant was never signed when in fact it was. In
addition, each of the Defendant's claims in his post conviction
petition could have been or were addressed on direct appeal and
are, therefore, barred by the doctrine of res judicata. State v. Mack,
10th Dist. No. 13AP–884, 2014–Ohio–1648.

6 

State v. Davis, No. 15AP-518, 2015 WL 6522858, at *3 (Ohio App. 10th Dist. October 29, 2015).
Levander R. Davis is appealing from the denial of his petition for
post-conviction relief. He assigns five errors for our consideration:
[1.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO HOLD AN
EVIDENTIARY HEARING ON THE APPELLANT'S POST–
CONVICTION PETITION.
[2.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE RELIEF
PURSUANT
TO
THE
MANY
CONSTITUTIONAL
VIOLATIONS RELATED TO PRETRIAL IDENTIFICATION.
[3.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE RELIEF
RELATED TO THE .40 CALIBER HANDGUN.
[4.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE RELIEF
RELATED TO THE SEARCH WARRANT FOR BUCCAL
SWABS, WHICH WAS INVALID BECAUE IT WAS NOT
SIGNED BY A JUDGE OR MAGISTRATE.
[5.] THE TRIAL COURT ERRED, AND DUE PROCESS WAS
DENIED, WHEN THE COURT FAILED TO PROVIDE RELIEF
RELATED TO POLICE OFFICER'S MISHANDLING OF THE
BUCCAL SWABS TAKEN FROM THE APPELLANT FOR
THE PURPOSES OF DNA TESTING.
Id. at *1. On October 29, 2015, the appellate court affirmed the judgment of the trial court. Id.
On March 9, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal from
that decision. State v. Davis, 145 Ohio St.3d 1408 (Ohio 2016).
On February 12, 2015, Petitioner filed this habeas corpus action pursuant to 28 U.S.C. §
2254. He alleges that the trial court erred when it overruled his motion for judgment of acquittal
(claim one); that his convictions were against the manifest weight of the evidence (claim two);
that his DNA evidence was admitted in violation of the Fourth Amendment because it was
obtained without a valid search warrant (claim three); that the trial court improperly imposed
7 

consecutive terms of incarceration on firearm specifications committed as part of the same act or
transaction (clam four); that DNA samples were improperly handled, in violation of due process
(claim five); that the investigator’s contamination of crime scene evidence violated due process
(claim six); that the pre-trial photo array identification procedures violated due process (claim
seven); that the evidence was constitutionally insufficient to sustain his convictions (claim eight);
and that he was denied the effective assistance of trial and appellate counsel (claims nine and
ten). Respondent contends that Petitioner’s claims are without merit, not cognizable in federal
habeas corpus proceedings, or procedurally defaulted.
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of state-court
determinations. The United State Supreme Court recently described AEDPA as “a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”
and emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S.
86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly
deferential standard for evaluating state-court rulings, and demands that state court decisions be
given the benefit of the doubt.” (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct.
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
8 

28 U.S.C. § 2254(e)(1). “Under AEDPA, a writ of habeas corpus should be denied unless the
state court decision was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court, or based on an unreasonable
determination of the facts in light of the evidence presented to the state courts.” Coley v. Bagley,
706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28
U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was “contrary to, or
involved an unreasonable application of, clearly established federal law”); 28 U.S.C. §
2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable determination
of the facts in light of the evidence presented in the State court proceeding”). The United States
Court of Appeals for the Sixth Circuit has explained these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable, . . . [t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,

9 

(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. at 102
(“A state court's determination that a claim lacks merit precludes federal habeas relief so long as
“‘fairminded jurists could disagree’ on the correctness of the state court's decision.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable
application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the
reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
(“[O]ur focus on the ‘unreasonable application’ test under Section 2254(d) should be on the
ultimate legal conclusion that the state court reached and not whether the state court considered
and discussed every angle of the evidence.” (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.
2002) (en banc))); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013) (considering
evidence in the state court record that was “not expressly considered by the state court in its
opinion” to evaluate the reasonableness of state court's decision). Relatedly, in evaluating the
reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a court must
review the state court's decision based solely on the record that was before it at the time it
rendered its decision. Pinholster, 563 U.S. at 181. Put simply, “review under § 2254(d)(1)
focuses on what a state court knew and did.” Id. at 182.
Claims One and Eight
In claim one, Petitioner alleges that the trial court erred in overruling his motion for
judgment of acquittal.2 In claim eight, Petitioner alleges that the evidence is constitutionally
insufficient to sustain his convictions.

2

 Rule 29 of the Ohio Rules of Criminal Procedure provides, “The court on motion of a defendant or on its own
motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more
offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction

10 

To the extent that Petitioner presents a claim regarding an alleged violation of a state rule,
the claim fails to provide a basis for federal habeas corpus relief. A federal court may review a
state prisoner's habeas corpus petition only on the grounds that the challenged confinement is in
violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A
federal court may not issue a writ of habeas corpus “on the basis of a perceived error of state
law.” Pulley v. Harris, 465 U.S. 37 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir.
1988)). A federal habeas court does not function as an additional state appellate court reviewing
state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir.
1988)). “‘[F]ederal courts must defer to a state court's interpretation of its own rules of evidence
and procedure’” in considering a habeas petition. Machin v. Wainwright, 758 F.2d 1431, 1433
(11th Cir. 1985).
However, before a criminal defendant can be convicted consistent with the United States
Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining
whether the evidence was sufficient to support a petitioner’s conviction, a federal habeas court
must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S.
277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to “rule
out every hypothesis except that of guilt.” Id. (quoting Jackson, at 326). “[A] reviewing court
‘faced with a record that supports conflicting inferences must presume – even if it does not
appear on the record – that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” Id. (quoting Jackson, at 326).

of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the
close of the state's case.”

11 

Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), deference must be given, first, to the jury's finding of guilt because the
standard, announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits
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.” Second, and even if a de novo
review of the evidence leads to the conclusion that no rational trier of fact could have so found, a
federal habeas court “must still defer to the state appellate court's sufficiency determination as
long as it is not unreasonable.” See also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This
is a substantial hurdle for a habeas petitioner to overcome, and Petitioner has not done so.
The state appellate court rejected Petitioner’s claim of insufficiency of evidence in
relevant part as follows:
Whether evidence is legally sufficient to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). Sufficiency is a test of adequacy. Id. The evidence is
construed in the light most favorable to the prosecution to
determine whether a rational trier of fact could have found the
essential elements of the offense proven beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of
the syllabus; State v. Conley, 10th Dist. No. 93AP–387 (Dec. 16,
1993). When reviewing the sufficiency of the evidence, the court
does not weigh the credibility of the witnesses. State v. Yarbrough,
95 Ohio St.3d 227, 2002–Ohio–2126, ¶ 79.
Defendant argues that the State did not demonstrate that he: (1)
purposely caused the death of Ferguson, (2) attempted to purposely
cause the death of Fagain, (3) knowingly caused serious physical
harm to others, or (4) that he had a prior felony conviction and
possessed a weapon. According to defendant, the State failed to
prove beyond a reasonable doubt that he fired a 40 caliber handgun
that night.
The State presented two eyewitnesses who saw defendant shoot
Ferguson, and a third eyewitness who saw defendant with a gun
12 

that night. Further, although defendant claimed that there were
multiple shooters in the bar that night, all three eyewitnesses who
testified saw only one person with a gun in the bar before the
shooting, and that person was the defendant.
Although a 40 caliber handgun was not recovered that night, a 40
caliber magazine clip was recovered. Forensic evidence established
that defendant was a major contributor of DNA on the magazine
clip. Further, the 9mm and 40 caliber spent shell casings which
were recovered from the bar were all found in the same general
area, the north end of the bar.
Here, both eyewitness testimony and circumstantial evidence
indicated that defendant was the shooter at Mike's Bar that night
and that he was the one who killed Ferguson and wounded Fagain.
Accordingly, sufficient evidence supported the jury's conclusion
that defendant purposely caused Ferguson's death, attempted to
cause Fagain's death, knowingly caused serious physical harm to
others, and had a weapon while under disability.
Because the evidence, when viewed in a light most favorable to the
State was legally sufficient to support defendant's conviction, the
trial court properly overruled defendant's Crim.R. 29 motion.
Defendant's first assignment of error is therefore overruled.
***
The State presented physical and scientific evidence establishing
that defendant possessed a 40 caliber handgun on the night of the
shooting. First, the State presented two eyewitnesses who saw
defendant shoot Ferguson, and one of those eyewitnesses was a
friend of defendant. Second, Fagain specifically testified that
defendant shot him. The evidence established that Fagain was shot
twice in the stomach, indicating that he was facing defendant at the
time the shots were fired. Second, there were thirty-three 40 caliber
shell casings found inside the bar in the same general area as the
9mm shell casings which were fired from the gun recovered from
defendant. This indicates that both guns were fired from the same
general area. Third, DNA testing revealed that defendant was a
major contributor to the DNA recovered from the 40 caliber
magazine clip. As the State's expert noted, there are major
contributors and minor contributors and here defendant was a
major contributor to the DNA present on the 40 caliber magazine
clip. Fourth, there was testimony that defendant owned several
handguns and was known to carry more than one gun on occasion.

13 

. . . The direct and circumstantial evidence indicating that
defendant shot and killed Ferguson and wounded Fagain, including
eyewitness testimony and other physical evidence recovered from
the scene, provided the jury with credible, competent evidence on
which to find defendant guilty on all counts beyond a reasonable
doubt.
State v. Davis, 2013 WL 3356569, at *3-5.
Petitioner argues that the evidence is constitutionally insufficient to sustain his
convictions because the bullets removed from both Ferguson and Fagain were from a 40 caliber
gun, and no witness testified that Petitioner possessed a 40 caliber handgun or saw him in
possession of multiple firearms. According to Petitioner, Houston and Faigan had difficulty
identifying him as the person in possession of a firearm, and Evans’ testimony was unreliable
because he testified pursuant to a plea agreement with the prosecution. Petitioner also notes that
all of the injuries sustained on the night in question were caused by a 40 caliber handgun. Under
all these circumstances, Petitioner argues, the evidence suggests that there must have been
multiple shooters because he would have had to re-load at least three times in order to have fired
the thirty-three spent shell casings that were recovered from the scene. Petitioner insists that he
could not have fired his 9 mm. handgun eleven times and also have fired an additional thirtythree times from a 40 caliber firearm prior to the arrival of police. Referring to the DNA
evidence linking him to the 40 caliber magazine clip, Petitioner contends that this evidence does
not necessarily indicate that he used that firearm, because there was also evidence that DNA can
be transferred or left behind; according to Petitioner, crime scene investigators likely transferred
his DNA when they dusted for fingerprints. Additionally, Petitioner states that police found the
40 caliber magazine clip lying in a puddle of his urine, which could also have explained the

14 

presence of his DNA. Petitioner argues that the State failed to establish that he attempted to
cause the death of Fagain, because Fagain did not actually witness the person who shot him.3
However, Petitioner does not dispute the factual findings of the state appellate court, nor
has he rebutted the presumption of correctness afforded to these factual findings. See 28 U.S.C.
§ 2254(e)(1). For the reasons discussed by the state appellate court, this Court agrees that, when
viewing all the evidence in the light most favorable to the prosecution, the evidence is
constitutionally sufficient to sustain Petitioner’s convictions. Petitioner has failed to establish
that the state appellate court contravened or unreasonably applied federal law in denying his
claim of insufficiency of the evidence, or that the state appellate court based its decision on an
unreasonable determination of the facts in light of the evidence presented. As noted supra, all
three witnesses identified Petitioner as the only person in possession of a firearm on the night in
question. Faigan watched Petitioner shoot Ferguson and firing throughout the club. No witness
observed any other shooters in the bar on that night. Petitioner’s friend, Evans, testified that
Petitioner owned several different guns, frequently carried a gun, and sometimes carried more
than one gun. Evans also saw Petitioner shoot Ferguson. Petitioner was identified as a major
contributor to the DNA found on the 40 caliber magazine clip located at the scene. In light of
this evidence, combined with the multiple shell casings found at the scene and which apparently
had been fired within a short period of time, the fact that police did not recover the 40 caliber
gun simply does not render the evidence constitutionally insufficient to sustain Petitioner’s
convictions.

3
 Referring to State v. Nolan, 141 Ohio St.3d 454 (Ohio 2014), Petitioner also argues that attempted murder does not
constitute a crime under Ohio law, and that his conviction on that charge should be reversed on that basis as well. In
State v. Nolan, the Ohio Supreme Court held that attempted felony murder, under O.R.C. § 2903.02(B),3 is not a
cognizable crime in Ohio. Id. at 456. However, Petitioner was not charged with or convicted of attempted felony
murder but, rather, of the attempted murder of Deandre Fagain. Indictment (ECF No. 9-1, PageID# 93).

15 

Claims one and eight are without merit.
Claim Two
In claim two, Petitioner alleges that his convictions are against the manifest weight of the
evidence. Petitioner acknowledges that this claim fails to present an issue appropriate for federal
habeas corpus review, and has withdrawn this claim. Reply (ECF No. 20, PageID# 624).
Claim two is without merit.
Claim Three
In claim three, Petitioner alleges that he was denied a fair trial because DNA evidence
was admitted in violation of the Fourth Amendment. Generally, habeas corpus relief cannot be
based on an alleged violation of the Fourth Amendment, so long as the petitioner had an
opportunity to present the claim to the state courts. Stone v. Powell, 428 U.S. 465, 482 (1976);
Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982)(opportunity for full and fair litigation of a
Fourth Amendment claim exists where the state procedural mechanism presents an opportunity
to raise the claim, and presentation of the claim was not frustrated by a failure of that
mechanism.)
One, the key purpose of federal habeas corpus is to free innocent
prisoners. But whether an investigation violated the Fourth
Amendment has no bearing on whether the defendant is guilty.
[Stone v. Powell], at 490, 96 S.Ct. 3037. Two, exclusion is a
prudential deterrent prescribed by the courts, not a personal right
guaranteed by the Constitution. Any deterrence produced by an
additional layer of habeas review is small, but the cost of undoing
final convictions is great. Id. at 493, 96 S.Ct. 3037.
Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013).

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Ohio permits a criminal defendant to file a motion to suppress evidence prior to trial. See
Ohio R. Crim. P. 12(C)(3). Further, there is no basis in the record upon which to find that
Petitioner was unable to present a claim under the Fourth Amendment because of a failure of
Ohio’s procedural mechanism.
Petitioner argues that Stone v. Powell does not preclude review of his claim in these
proceedings, because his attorney failed to file a motion to suppress DNA evidence as illegally
obtained. Reply (ECF No. 20, PageID# 629-30). However, the United States Court of Appeals
for the Sixth Circuit has made clear that “the Powell ‘opportunity for full and fair consideration’
means an available avenue for the prisoner to present his claim to the state courts[.]” Good v.
Berghuis, 729 F.3d at 639. The fact that Petitioner did not avail himself of that opportunity
before the trial court does not mean that he can do so here.
Claim three is without merit.
Procedural Default
Respondent contends that Petitioner has procedurally defaulted certain claims. In
recognition of the equal obligation of the state courts to protect the constitutional rights of
criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state criminal defendant with federal constitutional claims is required to present those
claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the defendant fails to do
so, but still has an avenue open to him by which he may present his claims to the state courts,
then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v.
Harless, 459 U.S. 4, 6 (1982 (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78
(1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if

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later presented to the state courts, “there is a procedural default for purposes of federal habeas. . .
.” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to
the highest court of the State so that the State has a fair chance to correct any errors made in the
course of the trial or the appeal before a federal court intervenes in the state criminal process.
This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts
before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.
2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives
the state courts a fair opportunity to rule on the federal law claims being asserted. That means
that, if the claims are not presented to the state courts in the way in which state law requires and
the state courts therefore do not decide the claims on their merits, neither may a federal court do
so. In the words of the Supreme Court, “contentions of federal law which were not resolved on
the merits in the state proceeding due to respondent's failure to raise them there as required by
state procedure” also cannot be resolved on their merits in a federal habeas case – that is, they
are “procedurally defaulted.” Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a
federal habeas claim is waived by the petitioner's failure to observe a state procedural rule.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there
is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to
comply with the rule.” Id. Second, the court must determine whether the state courts actually
enforced the state procedural sanction.

Id.

Third, it must be decided whether the state

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procedural forfeiture is an adequate and independent state ground upon which the state can rely
to foreclose review of a federal constitutional claim. Id. Finally, if the court determines that a
state procedural rule was not satisfied, and that the rule is an adequate and independent state
ground, then the petitioner must demonstrate that there was cause for him not to follow the
procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This
“cause and prejudice” analysis applies even to failures to raise or preserve issues for review at
the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).
In order to establish cause, a petitioner must show that “some objective factor external to
the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause
sufficient to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
However, in order to constitute cause, an ineffective assistance of counsel claim generally must
“‘be presented to the state courts as an independent claim before it may be used to establish
cause for a procedural default.’” Id. at 452 (quoting Murray v. Carrier, 477 U.S. at 479). In
order to constitute cause sufficient to excuse a procedural default, the ineffective assistance of
counsel “must itself amount to a violation of the Sixth Amendment, and therefore must be both
exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir.
2005). If the claim of ineffective assistance of counsel is also procedurally defaulted, the
petitioner must be able to “satisfy the ‘cause and prejudice’ standard with respect to the
ineffective-assistance claim itself.”

Edwards, 529 U.S. at 450–51.

The Supreme Court

explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the
procedural-default doctrine in Coleman: “In the absence of the
independent and adequate state ground doctrine in federal habeas,
habeas petitioners would be able to avoid the exhaustion
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requirement by defaulting their federal claims in state court. The
independent and adequate state ground doctrine ensures that the
States' interest in correcting their own mistakes is respected in all
federal habeas cases.” 501 U.S., at 732, 111 S.Ct. 2546, 115
L.Ed.2d 640. We again considered the interplay between
exhaustion and procedural default last Term in O'Sullivan v.
Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999),
concluding that the latter doctrine was necessary to “‘protect the
integrity’ of the federal exhaustion rule.” Id., at 848, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be utterly
defeated if the prisoner were able to obtain federal habeas review
simply by “‘letting the time run’” so that state remedies were no
longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144
L.Ed.2d 1. Those purposes would be no less frustrated were we to
allow federal review to a prisoner who had presented his claim to
the state court, but in such a manner that the state court could not,
consistent with its own procedural rules, have entertained it. In
such circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a “fair
‘opportunity to pass upon [his claims].’” Id., at 854, 526 U.S. 838,
119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)
(emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70
S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, a court concludes that a
procedural default has occurred, the court may not consider the merits of the procedurally
defaulted claim unless “review is needed to prevent a fundamental miscarriage of justice, such as
when the petitioner submits new evidence showing that a constitutional violation has probably
resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530
(6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. at 495–96).
In claim four, Petitioner alleges that the trial court unconstitutionally imposed
consecutive prison terms on firearm specifications. In claim five, Petitioner alleges that police
improperly handled DNA samples, thereby denying him due process. In claim six, Petitioner
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alleges that investigators’ contamination of the crime scene denied him due process. In claim
seven, Petitioner alleges that he was denied a fair trial due to the admission of identification
testimony based on improper photo array procedures. In claim nine, Petitioner alleges that he
was denied the effective assistance of trial counsel. However, Petitioner failed to raise any of
these claims on direct appeal, where he was represented by new appellate counsel. Further, he
may now no longer do so under Ohio law, which provides that an issue appearing on the record
but not raised on direct appeal is barred by the doctrine of res judicata. See State v. Cole, 2 Ohio
St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175
(1967).
Petitioner attempted to present some of these claims in his petition for post conviction
relief; however, the state appellate court explicitly declined to address the merits of those claims
because they were foreclosed under Ohio’s doctrine of res judicata. “The trial court judge's
findings that the doctrine of res judicata barred relief are correct. Everything alleged by Davis
was either litigated during the trial or could have been litigated at the trial.” State v. Davis, 2015
WL 6522858, at *3.
This Court has consistently determined that Ohio's res judicata rules serve important
state interests in the finality of criminal convictions. See, e.g. Davenport v. Warden, Ross
Correctional Inst., No. 2:14-CV-0245, 2015 WL 1321583 (S.D. Ohio March 24, 2015), adopted
and affirmed, 2015 WL 1914277 (S.D. Ohio April 27, 2015); Wiley v. Banks, No. 2:13-CV-99,
2013 WL 1663962 (S.D.Ohio Apr.17, 2013), adopted and affirmed 2013 WL 3350668 (S.D.
Ohio July 3, 2013).
Petitioner may still obtain a merits review of these claims if he can establish cause for his
procedural default as well as actual prejudice from the alleged constitutional violations. As

21 

cause for his failure to raise these claims on direct appeal, Petitioner asserts the denial of the
effective assistance of appellate counsel, as presented in habeas corpus claim ten. As noted
supra, the denial of the effective assistance of counsel may constitute cause for a procedural
default if that claim has been presented to the state courts and has not also been procedurally
defaulted.

Edwards v. Carpenter, 529 U.S. at 452-53.

However, Petitioner procedurally

defaulted his claim of ineffective assistance of appellate counsel, because he never filed a timely
appeal to the Ohio Supreme Court of the appellate court’s November 21, 2013, decision denying
Petitioner’s Rule 26(B) application to reopen the direct appeal based on ineffective assistance of
appellate counsel. Further, Petitioner may now no longer do so, because Ohio does not permit
delayed appeals in Rule 26(B) proceedings. Ohio Sup. Ct. Prac. R. 7.01(A)(4)(c).
Petitioner asserts, however, that he has established cause and prejudice for his failure to
file a timely appeal to the Ohio Supreme court in Rule 26(B) proceedings. “[P]etitioner has the
burden of showing cause and prejudice to overcome a procedural default. Hinkle v. Randle, 271
F.3d 239, 245 (6th Cir. 2001)(citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999))(internal
citation omitted).
“‘[C]ause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him[;] . . . some objective factor external to the defense [that]
impeded . . . efforts to comply with the State's procedural rule.”
Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003); see also Lundgren v. Mitchell, 440 F.3d
754, 763–64 (6th Cir. 2006)(citing Murray v. Carrier, 477 U.S. at 488). A petitioner's pro se
status or “ignorance of the law and procedural requirements for filing a notice of appeal is
insufficient to establish cause to excuse his procedural default.” Bonilla v. Hurley, 370 F.3d 494,
498 (6th Cir. 2004)(citing Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995)). In order to
22 

establish cause, a petitioner “must present a substantial reason that is external to himself and
cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007)(citing
Jamison v. Collins, 291 F.3d 380, 386 (6th Cir. 2002)(holding that the prosecution's withholding
of Brady evidence qualified as a “substantial reason for the default that is external to [the
petitioner]”)). See, e.g., Maples v. Stegall, 340 F.3d at 438–39 (failure by prison officials to
promptly deliver legal mail may constitute cause for procedural default); but see Martin v.
Vannatta, unpublished, 175 Fed. Appx. 45 (7th Cir. Mar. 23, 2006)(rejecting petitioner's
assertion that inadequate funds for postage constituted cause for his untimely filing where he
could have obtained free postage.)
Here, Petitioner represents that he timely submitted appropriate pleadings for his Rule
26(B) appeal to prison officials for mailing to the Ohio Supreme Court, but that the prison had no
notary available. He also alleges that prison officials “somehow lost or otherwise misplaced”
some of his pleadings and that the “un-notarized, incomplete package was returned to the
Petitioner with a notification from the Ohio Supreme Court Clerk that the pleadings could not be
filed until the corrections were made.” Motion to Expand Record (ECF No. 19, PageID# 604).
Although Petitioner did not attach a complete copy of the letter from the Clerk of the Ohio
Supreme Court, he states that his appeal documents were not filed because they did not meet the
requirements of the Rules of Practice of the Supreme Court of Ohio. The Clerk of the Ohio
Supreme Court advised Petitioner:
You did not submit a notice of appeal as required by Rule 7.01(A)(1)(a)(i);
Your memorandum in support of jurisdiction exceeds the page limitation
set forth in Rule 7.02(B);
Your memorandum in support of jurisdiction contains attachments
that are not judgment entries or opinions issued in the case, and
therefore violates Rule 7.02(D)(3).
23 

To timely appeal a November 22, 2013 court of appeals decision, a
notice of appeal, memorandum in support of jurisdiction in
compliance with the Rules of Practice, and your affidavit of
indigence were due in the clerk’s office no later than January 6,
2014.
Reply (ECF No. 20, PageID# 614).4 Petitioner takes the position that it was the fault of prison
officials that caused these deficiencies in his filing with the Ohio Supreme Court; he insists that
these deficiencies did not exist in his filing when he submitted it to prison officials for mailing.
Id. at (PageID# 615-16).
Petitioner has failed to meet his burden of establishing cause for his procedural default of
his claim of ineffective assistance of appellate counsel. Nothing in the record supports his claim
that he timely submitted the appeal to prison officials for mailing, or that his filing otherwise
complied with the Rules of the Ohio Supreme Court, and that prison officials somehow
improperly mailed the wrong, or incorrect, or modified documents on his behalf.
Beyond the four-part Maupin analysis, this Court is required to consider whether this is
“an extraordinary case, where a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,
505 U.S. 333 (1992). After review of the record, the Court does not deem this to be such a case.
In short, the Court concludes that claims four through seven, and claims nine and ten, are
procedurally defaulted.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

4

 Petitioner represents that he “cropped and pasted” into his Reply (ECF No. 20) a portion of the Clerk’s letter. Id.
(PageID# 614).

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Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
November 2, 2016

25