McEwen v. Warden Lebanon Correctional Institution

Filing 8

REPORT AND RECOMMENDATION that 3 Petition for Writ of Habeas Corpus be DENIED and that this case be DISMISSED. Objections to R&R due by 12/16/2016. Signed by Magistrate Judge Terence P. Kemp on 11/29/2016. (agm)(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
DENZEL J. McEWEN,
Petitioner,
v.

CASE NO. 2:15-cv-2963

ERNIE MOORE, WARDEN

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this action seeking a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on the Petition (Doc. 3) and the
Response (Doc. 7). For the reasons that follow, it will be recommended that the Court
deny the petition and dismiss this action.
I. Procedural Background
In an indictment filed on May 24, 2011, the Franklin County, Ohio grand jury
charged Petitioner with two counts of murder with a firearm specification, arising out of
the death of William Alexander Kohler on December 22, 2010. Return, Ex. 1. Petitioner
pleaded not guilty. The case was tried to a jury, which returned a verdict of guilty on both
counts. In an entry filed on April 16, 2012, the trial court merged the two convictions for
purposes of sentencing and sentenced Petitioner to a prison term of 15 years to life, plus
a consecutive term of three years on the firearm specification. Return, Ex. 5.
Petitioner timely appealed, raising two assignments of error: that the verdict was

against the manifest weight of the evidence and that it was not supported by sufficient
evidence. In a decision rendered on February 26, 2013, the Tenth District Court of Appeals
overruled both assignments of error. State v. McEwen, 2013 WL 749483 (Franklin Co. App.
Feb. 26, 2013). Petitioner appealed this decision to the Ohio Supreme Court., raising the
same two issues. On June 26, 2013, the Ohio Supreme Court declined to accept Petitioner’s
timely appeal. State v. McEwen, 136 Ohio St.3d 1405 (June 26, 2013). Petitioner made no
other state court filings.
In his federal habeas corpus petition, which Petitioner signed on October 19, 2015,
Petitioner raises the same two claims which he presented to the state courts. Respondent
argues that the petition is time-barred and, alternatively, that it lacks merit. Petitioner has
not filed a reply in support of his petition. He did assert in the petition, however, that he
did not receive a copy of the Ohio Supreme Court’s decision on his appeal despite writing
multiple letters to that court in 2013, 2014, and 2015 asking about the status of his appeal.
He attached copies of his letters to the petition.
II. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which
became effective on April 24, 1996, imposes a one-year statute of limitations on the
filing of habeas corpus petitions. 28 U.S.C. § 2244(d) provides:
(d) (1) A 1–year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a
State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion
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of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
Petitioner’s conviction became final on June 26, 2013, when the Ohio Supreme Court
declined to accept his appeal. He had ninety days after that to petition the United States
Supreme Court for a writ of certiorari. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir.
2000). That time expired on September 25, 2013. Consequently, he had one year from
that date to file his petition. It was over a year late, and Petitioner does not argue
otherwise.
The statute of limitations contained in §2244(d) is subject to equitable tolling. As
the Court of Appeals explained in Giles v. Beckstrom, 826 F.3d 321, 325 (6th Cir. 2016).
“[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary
circumstances stood in his way and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal
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quotation marks and citation omitted). In order for the limitations period
to be tolled equitably based on attorney error, which is the claim here, the
error must be “far more serious” than “a garden variety claim of excusable
neglect.” Id. at 651–52, 130 S.Ct. 2549 (internal quotation marks and
citation omitted).
Respondent, relying on, among other decisions, Winkfield v. Bagley, 66 Fed. Appx.
578 (6th Cir. May 28, 2003), argues that Petitioner’s efforts to obtain information about
his appeal do not constitute a diligent pursuit of his rights. In Winkfield, almost ten
years elapsed between the petitioner’s last effort to learn the status of his state court
appeal (which he did by writing letters to his counsel, who told him, erroneously, that
the appeal was still pending) and the filing of his habeas corpus petition. The Court of
Appeals held that the petitioner had not shown the required degree of diligence to
satisfy the requirements of equitable tolling. Respondent also argues that Petitioner had
other ways to check on the status of his appal apart from writing letters and that he was
not entitled to rely simply on the lack of a response as evidence that his appeal had not
yet been decided.
As this Court said in Jones v. Warden, Lebanon Correctional Institution, 2014 WL
907253. *7 (S.D. Ohio March 7, 2014),
There is no single standard which defines how a habeas corpus petitioner
must attempt to keep up to date about the progress of state court
proceedings. Such petitioners find themselves in different circumstances,
and those circumstances dictate, to some extent, what they must do in
order to be considered diligent. For example, an inmate with internet
access to court dockets may be required to use that means to check on the
progress of a state court case, while one with no such access will
necessarily be relegated to other methods. As one court has stated, “[t]he
diligence requirement ‘does not demand a showing that the petitioner left
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no stone unturned.’ ” Munchinski v. Wilson, 694 F.3d 308, 330 (3d Cir.
2012), quoting Ramos–Martinez v. United States, 638 F.3d 315, 324 (1st Cir.
2011). As that court noted, “[i]f a petitioner ‘did what he reasonably
thought was necessary to preserve his rights ... based on information he
received ... then he can hardly be faulted for not acting more “diligently”
than he did.’ ” Id . at 331, quoting Holmes v. Spencer, 685 F.3d 51, 65 (1st
Cir. 2012).

Here, the correct answer to the question of whether Petitioner is entitled to equitable
tolling may depend on more facts and circumstances than are currently before the
Court. Requests for equitable tolling must be decided on the facts of each case. See King
v. Bell, 378 F.3d 550, 553 (6th Cir. 2004) (“every court must consider an equitable tolling
claim on a case-by-case basis”). Rather than resolve the statute of limitations issue on
the current record, the Court will proceed to an examination of the merits of Petitioner’s
claims. See, e.g., Rains v. Warden, Chillicothe Correctional Institution, 2016 WL 6136993, *8
(S.D. Ohio Oct. 20, 2016) (“[r]ather than decide the close question or hold an evidentiary
hearing to further develop the record, the undersigned concludes that it would be a
more expedient and efficient use of the Court's time and resources to directly address
petitioner's claims for relief on the merits”), adopted and affirmed 2016 WL 6804950 (S.D.
Ohio Nov. 16, 2016).
III. The Merits
Petitioner asserts two related claims: that the verdict reached by the jury was
against the manifest weight of the evidence and that the evidence was insufficient to
support his conviction. Although these claims are similar, only the second arises under
the United States Constitution; the first is a claim based on state law and cannot be
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reviewed by a federal habeas court. See, e.g., Walker v. Engle, 703 F.2d 959, 969 (6th
Cir.1983). The Court reviews the federal claim using this standard of review.
A. General Standard of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets forth
standards governing this Court's review of state-court determinations. The United
States 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, 102 (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).
Habeas corpus should be denied unless the state court decision was contrary to,
or involved an unreasonable application of, clearly established federal law as

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determined by the Supreme Court, or based on an unreasonable determination of the
facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d)(1); Coley v.
Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir.
2006)); see also 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
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 (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....
Coley, supra, 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
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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. “
‘[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.' ” Holder v. Palmer, 588 F.3d 328,
341 (6th Cir. 2009) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)).
See also Nicely v. Mills, 521 Fed.Appx. 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). Moreover, in
evaluating the reasonableness of a state court's ultimate legal conclusion under §
2254(d)(1), a federal habeas court must review the state court's decision based solely on
the record that was before the state court at the time that it rendered its decision. Put
simply, “review under § 2254(d)(1) focuses on what a state court knew and did.”
Pinholster, supra at 1398.
B. Standard of Review for Sufficiency of the Evidence
In cases such as Petitioner's challenging the sufficiency of the evidence and filed
after enactment of the AEDPA, two levels of deference to state decisions are required:
“In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to convict
him, we are thus bound by two layers of deference to groups who might
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view facts differently than we would.” First, as in all sufficiency-of-theevidence challenges, we must determine 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620
(6th Cir.1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold the
jury verdict if any rational trier of fact could have found the defendant
guilty after resolving all disputes in favor of the prosecution. Second, even
were we to conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we must
still defer to the state appellate court's sufficiency determination as long as
it is not unreasonable. See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v.
Virginia and then to the appellate court's consideration of that verdict, as commanded
by AEDPA. Tucker v. Palmer, 541 F.3d 652 (6th Cir.2008).
We have made clear that Jackson claims face a high bar in federal habeas
proceedings because they are subject to two layers of judicial deference.
First, on direct appeal, “it is the responsibility of the jury-not the court-to
decide what conclusions should be drawn from evidence admitted at trial.
A reviewing court may set aside the jury's verdict on the ground of
insufficient evidence only if no rational trier of fact could have agreed
with the jury.” Cavazos v. Smith, 565 U.S. 1, ––––, 132 S.Ct. 2, 181 L.Ed.2d
311, 313 (2011) (per curiam). And second, on habeas review, “a federal
court may not overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with the
state court. The federal court instead may do so only if the state court
decision was 'objectively unreasonable.' ” Ibid. (quoting Renico v. Lett, 559
U.S. ––––, ––––, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ––––, ––––, 132 S.Ct. 2060, 2062 (2012)(per curiam).
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C. Discussion
As the Court does in every case where a sufficiency of the evidence challenge is
made, the Court will first recite the facts of the case as they appear in the state court of
appeals opinion, and then examine that court’s determination that the evidence was
sufficient to support the petitioner’s conviction.
First, the facts, as stated in State v. McEwen, 2013 WL 749483 at *1-2:
On May 24, 2011, appellant was indicted on two counts of murder, each
being an unclassified felony, with a firearm specification attached to both
counts. The indictment alleged that appellant killed William Kohler
during an altercation on December 22, 2010. Count 1 of the indictment
alleged appellant purposely caused Kohler's death, and Count 2 alleged
Kohler died as a proximate result of appellant committing a felony offense
of violence. Appellant pleaded not guilty to the charges, and a jury trial
ensued.
At trial, Brittany Meeks testified as follows. In December 2010, Meeks
shared an apartment with her boyfriend, Nicholas Nye. Appellant also
lived there “[i]ntermittently.” (Tr. Vol.I, 39.) On the evening of December
21, 2010, Meeks was at the apartment with Nye and appellant. Kohler and
his girlfriend, Shelby Patzer, were also at the apartment. Appellant left the
apartment around 12 midnight, and everyone else fell asleep in the
bedroom by 1:00 a.m. Nye and Meeks slept on the bed, and Kohler and
Patzer slept nearby on a floor mattress. Later that morning, appellant
returned and started fighting with Nye in the bedroom. Meeks testified
she saw Kohler try to stop the fight and saw him get shot by appellant.
Afterward, appellant fled, and the police arrived. Although Meeks spoke
with the police about the shooting at the scene, she testified she had not
discussed the incident with anyone prior to that time. Meeks admitted
that she and her friends used heroin on the night before the shooting, but
testified that heroin generally only impacts her for an hour, and that her
ability to recall the shooting was not affected.
Patzer also testified that appellant shot Kohler during the December 22,
2010 altercation. Patzer confirmed that she and Kohler were visiting Nye
and Meeks on the night before the incident. She claimed that appellant
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was not with them that night, and she indicated that everyone went to bed
around 2:30 a.m. She said that nobody was using drugs before going to
bed. She admitted to previously using heroin but said that it had no
impact on her memory. Lastly, she testified that the police spoke with her,
Meeks, and Nye on the morning of the shooting. She said that she had not
spoken with Nye or Meeks about the incident prior to the time the police
had talked with her.

Nye confirmed at trial that appellant and Meeks lived with him in an
apartment, but said that only his name was on the lease. According to
Nye, he was at his apartment with appellant, Kohler, Meeks, and Patzer
on the evening of December 21, 2010, and everyone was using drugs
except for Kohler. Nye admitted he was high on heroin, but claimed the
drug did not affect his memory. Nye, Meeks, Kohler, and Patzer went to
bed around 3:00 a.m., and appellant left. Appellant returned later that
morning and started fighting with Nye. They were in Nye's bedroom, and,
at one point, Nye walked away from the fight and sat on his bed. He put
his head down and heard gunshots. He looked up and saw Kohler
bleeding and appellant running away.
Theresa Rudell lived next to Nye, and testified that she heard shots fired
in Nye's apartment at approximately 9:00 a.m. on December 22, 2010. She
looked out the peephole of her door and saw appellant fleeing the
apartment. She called the police immediately.
Franklin County Coroner Jan Gorniak testified that Kohler was
pronounced dead at 9:49 a.m. on December 22, 2010. According to
Gorniak, Kohler died from a gunshot wound to the chest.
Columbus Police Officer James Marsh was dispatched to the shooting
scene and testified as follows. Marsh went to the scene around 9:15 a.m.
and other police officers arrived soon afterward. Marsh saw Kohler lying
on the sidewalk, bleeding, and unable to talk. He also saw Nye, Patzer,
and Meeks. Marsh apprehended them for questioning and placed them in
separate police cruisers. He claimed that those individuals did not have
time to discuss the shooting between themselves because they were
apprehended and separated shortly after the incident.
Detective Pat Dorn arrived at the shooting scene after Marsh and testified
as follows. Nye, Patzer, and Meeks spoke with Dorn about the shooting,
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and they independently identified appellant as the shooter. Dorn
subsequently searched the apartment where the shooting occurred and
took blood samples from the apartment. Dorn explained to the jury that
the blood samples were not tested because only Kohler had been injured,
and, thus, he believed the blood could only have come from Kohler. Dorn
did not collect DNA or fingerprints because, according to Dorn, since
appellant lived in the apartment, there would have been traces of those
elements expected to be in the apartment. Dorn further testified that he
did not test anyone's hands for gunshot residue because the room where
the murder occurred was small and residue would have been on all
persons present in the room during the incident.
Appellant testified on his own behalf. He claimed that he was not at Nye's
apartment on the date of the shooting and denied shooting Kohler.
Petitioner argued in state court that the evidence was insufficient because all of the
witnesses were admitted drug users, and because the State never conducted any testing to
see if he had fired a weapon and did not produce the weapon at trial. He repeats that
argument here, stating that his presence at the apartment complex was not evidence of
guilt because he stayed there periodically, and that there was no DNA or fingerprint
evidence linking him to the crime scene or to the victim.
The state court of appeals rejected this argument, stating that:
Sufficiency of the evidence is a legal standard that tests whether the evidence
is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). Whether the evidence is legally sufficient to support a verdict is
a question of law, not fact. Id. In determining whether the evidence is legally
sufficient to support a verdict, “ ‘[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’ “ State v. Robinson, 124 Ohio St.3d 76,
2009–Ohio–5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. A verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the prosecution, it is
apparent that reasonable minds could not reach the conclusion reached by
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the trier of fact. State v. Treesh, 90 Ohio St.3d 460, 484 (2001).
In a sufficiency of the evidence inquiry, appellate courts do not assess
whether the prosecution's evidence is to be believed, but whether, if believed,
does the evidence support the verdict. State v. Yarbrough, 95 Ohio St.3d 227,
2002–Ohio–2126, ¶ 79–80 (concluding that the evaluation of witness
credibility is not proper on a review for the sufficiency of evidence); State v.
Bankston, 10th Dist. No. 08AP–668, 2009–Ohio–754, ¶ 4, citing State v.
Woodward, 10th Dist. No. 03AP–398, 2004–Ohio–4418, ¶ 16 (noting that “in a
sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state's
witnesses testified truthfully and determines if that testimony satisfies each
element of the crime”).
The prosecution alleged that appellant committed murder by fatally shooting
Kohler, and the jury found appellant guilty of that crime. Appellant argues
that the jury's verdict cannot stand because the evidence failed to establish
that he shot Kohler. In particular, appellant contends that there is no physical
evidence linking him to the murder. However, the prosecution need not rely
on physical evidence to prove a crime. State v. Jordan, 10th Dist. No.
05AP–1330, 2006–Ohio–5208, ¶ 27. Instead, a crime may be proven solely by
testimony from witnesses who were present when the crime occurred. Id.
Here, the jury's finding of appellant's guilt was supported by the testimony
of four witnesses. Meeks and Patzer testified that they saw appellant shoot
Kohler. While this direct evidence alone would have been sufficient to
support the jury's guilty findings, there was additional evidence presented
from Nye and Rudell. Nye testified that he heard gunshots while sitting on
his bed with his head down and when he looked up, Kohler had been shot,
and he saw appellant running out of the room. Rudell testified that she saw
appellant fleeing from Nye's apartment after hearing gunshots from inside
the apartment. Both Nye and Rudell's testimony, if believed, constituted
evidence from which the jury could infer appellant was guilty of murdering
Kohler.
Accordingly, after a review of the evidence, we conclude that there is
sufficient evidence to support the jury's verdict finding appellant guilty of
murder.
The state court of appeals did not cite to either the United States Constitution

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or to decisions of the Ohio Supreme Court when it discussed Petitioner’s federal
constitutional claim. However, it derived its legal test from State v. Thompkins, 78
Ohio St. 3d 380 (1997). Thompkins correctly states that “a conviction based on legally
insufficient evidence constitutes a denial of due process,” and cites to federal cases,
including Tibbs v. Florida, 457 U.S. 31 (1982) and Jackson v. Virginia, supra, for that
proposition. By relying on Thompkins, the state court of appeals correctly identified
the controlling federal law. Therefore, the only question in this case is whether it
reached a result contrary to that law or in a way that unreasonably applied it.
Clearly, it did not. The failure to present physical evidence like gunshot
residue or DNA testing is not fatal to the State’s case; courts have consistently held
that “[c]redible testimony of one identification witness is sufficient to support a
conviction.” United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1089 (7th Cir.
1989). Here, there were four eyewitnesses who implicated Petitioner in the murder.
Federal law permits a state court to consider that type of evidence to be sufficient.
Petitioner also raises the question of whether several of those witnesses were
credible because of their admitted heroin use on the night in question. But, under
Jackson, the jury is the sole decider of the credibility of the witnesses. The only way
a court can overturn that decision is if it was “physically impossible for the witness
to have observed that which he claims occurred, or impossible under the laws of
nature for the occurrence to have taken place at all.” United States v. Bailey, 510 F.3d
726, 733 (7th Cir. 2007) (internal quotation marks omitted). Courts routinely hold
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that it is for the jury to decide what effect, if any, the consumption of drugs or
alcohol has on a witness’ ability to testify truthfully. See, e.g., Unites States v. Taylor,
701 F.3d 1166, 1174 (7th Cir. 2012)(denying a challenge to the sufficiency of the
evidence by noting that even if the key witness “had been under the influence of
drugs and alcohol ... he could still have observed the events as he testified they
occurred” and noting that the evidence of alcohol consumption had been presented
to the jury for its consideration); see also United States v. Harlan, 815 F.3d 1100, 11061107 (8th Cir. 2016)(explaining that an appellate court does not weigh the testimony
of the witnesses, and upholding a conviction based on the testimony given by an
eyewitness “[d]espite her intoxication”). These cases demonstrate that the state
court of appeals’ deference to the jury here is in keeping with federal law, and that
the state court’s decision cannot be characterized as either contrary to, or an
unreasonable application of, clearly established federal law.

That being so,

Petitioner’s sole federal claim - that the evidence was insufficient to support a
conviction - lacks merit.
IV. Recommended Disposition
For the reasons set out above, the Court recommends that the petition for a
writ of habeas corpus be DENIED and that this case be DISMISSED.
V. Procedure on Objections
If any party objects to this Report and Recommendation, that party may,
within fourteen (14) days of the date of this Report, file and serve on all parties

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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/ Terence P. Kemp
United States Magistrate Judge

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