Bryant v. Turner

Filing 20

ORDER AND REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Edward R. Bryant. the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing and to strike the Return of Writ is DENIED. Objections to R&R due by 10/31/2016. Signed by Magistrate Judge Norah McCann King on 10/12/2016. (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
EDWARD R. BRYANT,
Petitioner,
Case No. 2:15-cv-02929
CHIEF JUDGE SARGUS
Magistrate Judge King

v.
NEIL TURNER, 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. 1), Respondent’s
Return of Writ (ECF No. 8), Petitioner’s Traverse (ECF No. 11), as amended (ECF No. 12), and
the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS
that this action be DISMISSED.
Petitioner’s request for an evidentiary hearing and to strike the Return of Writ, see
Traverse (ECF No. 12, PageID# 583), is DENIED.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
The following evidence was adduced as testimonial evidence at
trial herein: On October 11, 2011, Rickie Sivert1 arranged to meet
with Appellant, known on the street as “Black Rob,” to purchase
heroine. Rather than purchasing the heroine [sic], he and a friend
went to Columbus and stole $150.00 worth of heroine [sic] from
Appellant. Sivert then used the heroine [sic].

1

 This individual identified himself at trial as “Ricky Severt.” Trial Transcript (ECF No. 8-4, PageID# 335).

Appellant contacted his cousin, Joseph Barchetti, and told him he
needed a ride to Sivert's apartment due to the theft. Barchetti and
his girlfriend, Chloe Chambers, drove Appellant and his codefendant, Avery Brock, known on the street as “Buck,” to Sivert's
apartment. At the time, Sivert also owed Barchetti money for drugs
Barchetti had fronted to Sivert two months prior.
On the same date of October 10, 2011, Sivert overheard Barchetti
and other individuals outside his residence knocking on the door
and asking him to come outside. When he refused, the individuals
threw a grill at the back window of the residence and kicked in the
front door.
Sivert, his girlfriend, Cassandra Wooten, and their infant son hid in
the attic of the residence during the incident and called 911.
Wooten testified she saw Barchetti and Chambers outside the
house during the incident, and heard two male voices inside her
home destroying the first floor, and coming upstairs. Various items
in the residence were destroyed and upset, including a television,
which was thrown to the ground, a fish tank which was broken,
and furniture which was destroyed. Appellant and the other
individuals fled the scene as the police arrived.
Following the incident, Barchetti and Chambers cooperated with
the police investigating the home invasion. Both identified
Appellant as the perpetrator. Barchetti and Chambers provided a
detailed description of the events occurring at the apartment as
related to the burglary. Barchetti described Appellant, indicating he
had a tattoo on his right arm stating “DDBLOCK.” Both also
identified Appellant from an OHLEG photograph.
Appellant was indicted on one count of aggravated burglary, in
violation of R.C. 2911.11(A)(2), a felony of the first degree and a
firearm specification; one count of having a weapon under
disability, in violation of R.C. 2923.13(A)(2), a felony of the third
degree; and one count of vandalism, in violation of R.C.
2909.05(A), a fifth degree felony.
On February 22, 2012, Appellant filed a motion to suppress
challenging the out of court identification. The trial court denied
the motion.
The matter proceeded to a jury trial. Appellant was tried together
with his co-defendant Avery Brock. Following the presentation of
the state's evidence, Appellant filed a Criminal Rule 29 motion for
2 

acquittal. The trial court granted the motion dismissing the firearm
specification and reduced the charge of aggravated burglary to a
charge of burglary, a felony of the second degree, in violation of
R.C. 2911.12(A)(1). The trial court dismissed the weapons under
disability charge and reduced the vandalism charge to criminal
damaging, in violation of R.C. 2909.06(A)(1), a misdemeanor of
the second degree.
Appellant was convicted on all counts. Appellant's co-defendant,
Avery Brock, was acquitted of the charges. The trial court
sentenced Appellant to six years in prison as to the burglary count,
and sixty days in jail on the criminal damaging count, to run
concurrently.
State v. Bryant, No. 12CAA120088, 2013 WL 5569200, *1-2 (Ohio App. 5th Dist. Oct. 7, 2013).
Petitioner appealed his conviction, asserting the following claims:
I. APPELLANT'S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT'S DENIAL OF APPELLANT'S
MOTION TO SUPPRESS THE OUT OF COURT
IDENTIFICATION BY MR. JOSEPH BARCHETTI AND MS.
CHLOE CHAMBERS VIOLATED HIS RIGHT TO A FAIR
TRIAL AND DUE PROCESS OF LAW.
Id. at *2. On October 7, 2013, the appellate court affirmed the judgment of the trial court. Id.
On March 12, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal
pursuant to S.Ct.Prac.R. 7.08(B)(4). State v. Bryant, 138 Ohio St.3d 1434 (2014).
On June 9, 2014, Petitioner filed this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.2 He alleges that his convictions are against the manifest weight of the evidence
because they are based on unreliable out-of-court identifications of him as the perpetrator.
Respondent contends that Petitioner’s claim fails to provide a basis for relief. This Court agrees.

2

 The case was transferred to this Court from the United States District Court for the Northern District of Ohio.
Order (ECF No. 16)

3 

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.
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
4 

of the facts in light of the evidence presented in the State court proceeding”). The United States
Court of Appeals for the Sixth Circuit 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,
(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, 131 S.Ct. at 786
(“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

5 

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 18.
Manifest Weight of the Evidence
Petitioner first alleges that his convictions are against the manifest weight of the
evidence. This claim offers no basis for federal habeas corpus relief.
A federal court may issue a writ of habeas corpus on behalf of a person in custody
pursuant to the decision of a state court only if his custody is in violation of the Constitution or
laws of the United States. 28 U.S.C. § 2254(a). Thus, “[a] federal court may not issue the writ
on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). A
manifest weight of the evidence claim is an alleged error of state law that is not cognizable in
this Court. Under Ohio law, “[w]eight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than the
other. . . .’” State v. Thompson, 78 Ohio St.3d 380, 386 (1997) (citations omitted). “When a
court of appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the
factfinder's resolution of the conflicting testimony.” Id. A federal habeas court, however, may

6 

not “reweigh the evidence or re-determine the credibility of the witnesses whose demeanor has
been observed by the trial court” because, in habeas proceedings, “[i]t is the province of the
factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony.”
Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citations omitted). Because this
federal habeas court does not function as an additional state appellate court vested with the
authority to conduct such an exhaustive review, Petitioner's claim that his convictions were
against the manifest weight of the evidence cannot be considered by this Court.
Sufficiency of the Evidence
Petitioner also asks that his pro se Petition be liberally construed to also raise a claim
challenging the constitutional sufficiency of the evidence. Traverse (ECF No. 12). In Nash v.
Eberlin, 258 Fed.Appx. 761, unpublished, 2007 WL 4438008, at *3 (6th Cir. 2007), the United
States Court of Appeals for the Sixth Circuit held that a claim of insufficiency of the evidence
may be preserved for federal habeas corpus review even if it is raised in the state courts solely in
the context of a claim that the conviction is against the manifest weight of the evidence.
[T]he sufficiency of the evidence issue was adequately passed
upon by the Ohio courts because the determination by the Ohio
Court of Appeals that the conviction was supported by the manifest
weight of the evidence necessarily implies a finding that there was
sufficient evidence. The Ohio Court of Appeals, for instance, has
explained that “‘[b]ecause sufficiency is required to take a case to
the jury, a finding that a conviction is supported by the weight of
the evidence must necessarily include a finding of sufficiency.’
Thus, a determination that a conviction is supported by the weight
evidence will also be dispositive of the issue of sufficiency.” State
v. Lee, 158 Ohio App.3d 129, 814 N.E.2d 112, 115 (2004)
(citations omitted). Therefore, the district court properly
entertained Nash's sufficiency of the evidence claim because it has
been effectively presented to the Ohio courts and was decided by
the Ohio Court of Appeals.

7 

Id. at 765. See also Taylor v. Brunsman, No. 3:12CV800, 2014 WL 4113320, at *14 (N.D. Ohio
Aug. 20, 2014)(“[W]hen a federal pro se habeas litigant makes a manifest weight of the evidence
claim, after presentment and adjudication in the Ohio courts, a rule of lenient construction of pro
se pleadings applies to construe the manifest weight claim as a sufficiency of the evidence claim.
. . . because under Ohio law a finding that a conviction is supported by the manifest weight of the
evidence necessarily means that it has the support of sufficient evidence.”)(footnotes
omitted)(citing Nash v. Eberlin); see also Johnson v. Warden, Lebanon Correctional Institution,
No. 1:13-cv-82, 2014 WL 4829592, at *24 (S.D. Ohio Sept. 29, 2014)(same)(citing Nash, 258 F.
App'x at 764–65; Taylor v. Brunsman, No. 3:12cv800, 2014 WL 4113320, at *1, *14 (N.D.Ohio
Aug.20, 2014); Crawford v. Moore, No. 3:14cv22, 2014 WL 293868, at *8 (S.D.Ohio Jan.27,
2014) (Merz, M.J.) (Report & Recommendation) (and cases cited therein), adopted, 2014 WL
2200685 (S.D.Ohio May 27, 2014) (Rose, J.); Jones v. Cook, No. 2:12cv125, 2012 WL 5467528,
at *8 (S.D.Ohio Nov.9, 2012) (Abel, M.J.) (Report & Recommendation) (and cases cited
therein), adopted, 2012 WL 6472953 (S.D.Ohio Dec.13, 2012) (Watson, J.)). Therefore, this
Court will also address Petitioner’s claim that the evidence is constitutionally insufficient to
sustain his convictions.
The state appellate court rejected Petitioner’s claim in relevant part as follows:
Appellant maintains his convictions for burglary and criminal
damaging are against the manifest weight of the evidence.
***
Appellant was convicted of burglary, in violation of R.C.
2911.12(A)(1), and criminal damaging, in violation of R.C. 2909
.06(A)(1).
R.C. 2911.12(A)(1) reads,

8 

“(A) No person, by force, stealth, or deception, shall do any of the
following:
“(1) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure, when another
person other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured or
separately occupied portion of the structure any criminal offense;”
R.C. 2909.06(A)(1) reads,
“(A) No person shall cause, or create a substantial risk of physical
harm to any property of another without the other person's consent:
“(1) Knowingly, by any means;”
Appellant argues the substantive evidence presented at trial as to
Appellant and his co-defendant Avery Brock was identical on both
counts. Only Joseph Barchetti testified Appellant and Brock were
present when the incident occurred. Appellant was convicted of
burglary and criminal damaging, while Avery was acquitted of the
charges.
In State v. Hurt, (October 11, 1979), Cuyahoga No. 39389,
1979WL210430, the Eighth District Court of Appeals held,
“The basic rule as to inconsistent verdicts was originally stated in
Griffin v. State (1868), 18 Ohio St. 438. This rule is: ‘A verdict
will not be set aside as inconsistent, or uncertain, because it finds
differently as to counts in which there is no material difference.’
This rule of not requiring consistency in the verdicts as to different
counts of an indictment has been regularly adhered to in Ohio.
Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566; State v.
McNicol (1944), 143 Ohio St. 39, 47, 53 N.E.2d 808; State v.
Adams (1978), 53 Ohio St.2d 223, 374 N.E.2d 137.
“In the instant case, however, the alleged inconsistency occurred in
the different verdicts as to the three codefendants on the same
[Illegible text][sic]. Generally, there is no requirement that
judgments on the same count of an indictment be consistent as to
codefendants. See State v. Morris (1975), 42 Ohio St.2d 307, 325,
329 N.E.2d 85; State v. Hirsch (1956), 101 Ohio App. 425, 131
N.E.2d 419; Cleveland v. Ryan (1958), 106 Ohio App. 110, 148
N.E.2d 691. This appears to be the majority rule even where two or
more codefendants are tried together on the same charges and

9 

where one codefendant is convicted of a lesser included offense.
See Annot. 22 A.L.R.3d 717, 734, 735.”
Where multiple issues are presented before a jury with regard to
codefendants, consistent verdicts are not required. Here, Appellant
and Brock's participation and identity were at issue; therefore,
there is no requirement as to consistent verdicts between the
codefendants. While the substantive evidence presented on the
counts was identical, the issues presented and developed varied in
scope and degree as to each defendant. Testimony was offered at
trial as to Appellant, including a specific motive to burglarize the
residence, irrelevant to his codefendant. A review of the record
demonstrates the jury was properly instructed as to motive and as
to an accomplice jury instruction.
We find Appellant's conviction is not against the manifest weight
of the evidence.
State v. Bryant, 2013 WL 5569200, at *2-3.
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 of the offense is proven beyond a reasonable doubt. Id. 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 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

10 

grant habeas corpus relief only “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.
Moreover, there is a “double layer” of deference due state court determinations regarding
the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.
2009), deference is first due the jury's finding of guilt because the substantive 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.” Even if 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.” Id. See also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a
substantial hurdle for a habeas corpus petitioner to overcome and, for the reasons discussed by
the state appellate court, this Court concludes that Petitioner has not done so here.
Ricky Severt, who lived with his girlfriend and child in an apartment on 53 Neil Street,
testified that, on October 11, 2011, he and his friend stole $150.00 worth of heroin from
Petitioner. Trial Transcript (ECF No. 8-4, PageID# 336-340). Severt and Joe Barchetti were
best friends, and had known each other for more than eight years. Id. (PageID# 340). Severt
owed Barchetti money for drugs. Id. (PageID# 341). Severt also knew Chloe Chambers,
Barchetti’s girlfriend at the time. Id. (PageID# 342). Later that same day, Severt heard people
yelling his name and pounding on the front and back doors to the apartment, saying that they
wanted him to come outside and talk. Id. (PageID# 346). They threw something through his
back window, and he went upstairs into the attic with his son and girlfriend and called 9-1-1. Id.
(PageID# 348-50). He saw Barchetti at the front door and Chambers sitting in the car outside.

11 

Id. (PageID# 349). The person who entered his home broke almost everything in the living
room. A window was removed, and a couple hundred dollars was taken. Severt did not tell the
police because he did not want to pursue charges. Id. (PageID# 358). According to Cassandar
Wooten, Severt’s girlfriend, Severt owed money to a “whole bunch of people,” including
Barchetti. Id. (PageID# 389). The television, fish tanks, table and lamps were destroyed. Id.
(PageID# 390). Joseph Barchetti was incarcerated in the Delaware County Jail on a probation
violation at the time of trial. Id. (PageID# 407). Severt owed Barchetti money for drugs. Id.
(PageID# 408). Petitioner, also known as “Black Rob,” was Barchetti’s cousin. Id. (PageID#
409). Barchetti also identified Petitioner’s co-defendant, Avery Brock, or “Buck.” Id. (PageID#
410). Barchetti had a long criminal history and sold drugs. Id. (PageID# 411). On the date at
issue, Barchetti received a phone call from Petitioner asking Barchetti to pick him up, and stating
that Severt had just robbed him of $150.00 worth of drugs. Id. (PageID# 414). Petitioner
wanted Barchetti to show him where Severt lived. Id. (PageID# 415). Barchetti and his
girlfriend, Chloe, picked up Petitioner and co-defendant Brock. Id. (PageID# 415-16). They all
drove to Severt’s house. Id. (PageID# 421). They saw Severt walking up the street and began to
run after him. Id. (PageID# 422). Severt ran inside his house and hid. Barchetti told him they
just wanted to talk and wanted their money. Id. (PageID# 423). Barchetti ran up to the door and
started beating on it, demanding that Severt open the door. Id. Barchetti then went around to the
front of the house. A bicycle, baby pool, bag of cans and grill had been knocked over, and the
window had been broken. Id.(PageID# 424). He began banging on the door, telling Severt to
open the door. Petitioner and Brock kicked in the front door. Id. (PageID# 424-25). Barchetti
returned to the car and watched them destroy things inside the apartment. Id. (PageID# 425). He
told them that the police were coming and that it was time to leave. Id.

12 

Viewing all of this evidence in the light most favorable to the prosecution, the evidence is
constitutionally sufficient to sustain Petitioner’s conviction. Petitioner has failed to establish that
the state appellate court’s decision rejecting his claim is unreasonable so as to warrant federal
habeas corpus relief.
Identification Testimony
To the extent that Petitioner intends to assert as an independent claim that he was denied
a fair trial based on improper admission of witness identification, such claim likewise fails to
provide relief. The state appellate court rejected this claim as follows:
Appellant argues the trial court erred in allowing evidence as to the
out of court photo identification of Appellant.
Here, the State concedes lack of compliance with R.C. 2933.83.
However, maintains [sic] the identification was otherwise reliable.
An identification of a defendant is unreliable only if the
photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable
misidentification.
Photographic
identification
procedures must be viewed under the totality of the circumstances.
Stoval v. Denno (1967), 388 U.S. 296. The practice of showing
only one photograph to a potential eyewitness is not encouraged;
however, such measures have been shown to be both reliable and
necessary. State v. Battee (1991), 72 Ohio App.3d 660, 595 N.E.2d
977.
In Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d
401, the Supreme Court set forth a set of guidelines to assist in
weighing the totality of circumstances,
“[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of attention,
the accuracy of the witness' prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation
and the length of time between the crime and the confrontation.”
Here, viewing the photographic identification made by Barchetti
under the totality of the circumstances, while only one photograph
13 

was shown, Barchetti is Appellant's cousin; therefore, there was
not a substantial likelihood of misidentification. Further,
Chambers' identification of Appellant, assuming there was a
substantial likelihood of misidentification, was cumulative to the
identification of Barchetti, and, therefore, not prejudicial.
The second assignment of error is overruled.
State v. Bryant, 2013 WL 5569200, at *3-4.
“Over the past fifty years, the Supreme Court has developed a two-part test for
determining whether the evidence gathered from an eyewitness identification must be excluded
from trial due to the unduly suggestive nature of the identification procedure.” Howard v.
Warden, 519 F. App'x 360, 366 (6th Cir. 2013).
First, “due process concerns arise only when law enforcement
officers use an identification procedure that is both suggestive and
unnecessary.” [Perry v. New Hampshire, 132 S.Ct. 716, 724
(2012)] (emphasis added) (citing Manson v. Brathwaite, 432 U.S.
98, 107, 109, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Biggers, 409
U.S. at 198, 93 S.Ct. 375). But “[e]ven when the police use such a
procedure . . . , suppression of the resulting identification is not the
inevitable consequence.” Ibid. Rather, the second step of the
undue-suggestiveness framework requires an inquiry into “whether
under the 'totality of the circumstances' the identification was
reliable even though the confrontation procedure was suggestive.”
Biggers, 409 U.S. at 199, 93 S.Ct. 375. If an identification
resulting from an unduly suggestive procedure is nevertheless
deemed reliable, it is admissible, “[n]otwithstanding the improper
procedure” used by the police. Perry, 132 S.Ct. at 725; see also
[United States v.] Washam, 468 Fed.Appx. [568,] 570–71 [(6th Cir.
2012)](explaining that “[t]o exclude [eyewitness] identifications, a
defendant must show that the identification procedure was unduly
suggestive and the identifications were not otherwise reliable”).
Id. In making this determination, a court must consider the following factors:
(1) the opportunity of the witness to view the criminal at the time
of the crime; (2) the witness's degree of attention at the time of
observation; (3) the accuracy of the witness's prior description of
the criminal; (4) the level of certainty demonstrated by the witness
when confronting the defendant; and (5) the length of time
between the crime and the confrontation. Ledbetter v. Edwards,
14 

supra, 35 F.3d at 1070, citing Manson v. Brathwaite, 432 U.S. 98,
114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, supra,
409 U.S. at 199–200.
Poulsen v. Warden, Ross Corr. Inst., No. 2:11-cv-1067, 2012 WL 4361433, at *9 (S.D. Ohio
Sept. 25, 2012) (citation omitted).
Barchetti knew Petitioner, his cousin, and could therefore readily identify Petitioner. “‘A
defendant is denied due process only when the identification evidence is so unreliable that its
introduction renders a trial unfair. As long as there is not a substantial likelihood of
misidentification, it is the function of the jury to determine the ultimate weight to be given the
identification.’” United States v. Causey, 834 F.2d 1277, 1284-85 (6th Cir. 1987)(quoting Smith
v. Perini, 723 F.2d 478, 482 (6th Cir. 1983)(quoting Summit v. Bordenkircher, 608 F.2d 247, 253
(6th Cir. 1979)).

See also United States v. Meyer, 359 F.3d 820, 825 (6th Cir.

2004)(identification that stemmed from recollection of the incident was independently reliable);
Hudson v. Tibbals, No. 1:11-cv-2733, 2012 WL 3239147, at *20 (N.D. Ohio June 27,
2012)(witness’ identification not unreliable where based on prior familiarity with the defendant).
“The ‘primary concern expressed in cases discussing the problems with eyewitness identification
relates to a witness observing and subsequently identifying a stranger.’” Haliym v. Mitchell, 492
F.3d 680, 706 (6th Cir. 2007)(citing Moss v. Hofbauer, 286 F.3d 851, 862 (6th Cir. 2002)).
Barchetti had identified Petitioner by name and had allegedly participated in the events that he
described to police. Under these circumstances, the trial court did not unconstitutionally permit
evidence of Barchetti’s identification of Petitioner.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

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Procedure on Objections
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Response to objections must be filed within fourteen (14) days after being served with a
copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat'l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge's recommendations constituted a waiver of [the defendant's] ability to appeal the district
court's ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court's denial of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge's report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal....”) (citation omitted).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge

October 12, 2016
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