Castor v. Warden Ross Correctional Institution

Filing 13

REPORT AND RECOMMENDATION re 3 Petition for Writ of Habeas Corpus filed by George A. Castor in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 4/27/2017. Signed by Magistrate Judge Norah McCann King on 4/13/17. (sem)(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
GEORGE A. CASTOR, JR.,
Petitioner,
Case No. 2:16-cv-0050
JUDGE MICHAEL H. WATSON
Magistrate Judge King

v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition 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. 8), Petitioner’s Traverse (ECF No. 11), and the exhibits of the parties.
For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be
DISMISSED.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On October 29, 2013, the Delaware County Grand Jury indicted
appellant, George Castor, on forty-two counts involving burglaries
(R.C. 2911.12), possession of criminal tools (R.C. 2923.24), theft
(R.C. 2913.02), and receiving stolen property (R.C. 2913.51).
Thirty-one of the counts occurred in Franklin County and the
remaining eleven occurred in Delaware County.
A jury trial commenced on November 12, 2013. At the conclusion
of the state's case-in-chief, the prosecutor dismissed five counts
and amended others. The jury found appellant not guilty of one of
the burglary counts, and guilty of thirty-six counts, to wit: twelve
counts of burglary in the second degree, eight counts of burglary in
the third degree, one count of attempting to commit burglary in the

fourth degree, two counts of possessing criminal tools in the fifth
degree, one count of theft in the fourth degree, and twelve counts
of receiving stolen property, six in the fifth degree and six
misdemeanors in the first degree. By amended judgment entry filed
December 20, 2013, the trial court merged some of the counts and
sentenced appellant to an aggregate term of thirty-four years in
prison.
Appellant filed an appeal and this matter is now before this court
for consideration. Assignments of error are as follows:
I
“R.C. 2901.12(H) VIOLATES THE OHIO CONSTITUTION,
ARTICLE I, SECTION 10, AND THE SIXTH AMENDMENT
TO THE U.S. CONSTITUTION BY ALLOWING FOR A JURY
TRIAL IN A COUNTY OTHER THAN THAT IN WHICH THE
OFFENSE WAS COMMITTED.”
II
“APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE
EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND THE OHIO
CONSTITUTION, ARTICLE I, SECTION 10, BECAUSE
COUNSEL FAILED TO ARGUE THAT THE VENUE
STATUTE WAS UNCONSTITUTIONAL.”
III
“VENUE WAS NOT PROPER IN DELAWARE COUNTY FOR
COUNTS ONE THROUGH THIRTY–ONE BECAUSE THE
EVIDENCE FAILED TO SHOW A UNIFYING COURSE OF
CRIMINAL CONDUCT AS REQUIRED BY R.C. 2901.12(H).”
IV
“APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE
STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED
BY THE USE OF AN EYEWITNESS IDENTIFICATION
DERIVED FROM AN IMPERMISSIBLY SUGGESTIVE
PHOTOGRAPHIC LINEUP.”

2

State v. Castor, No. 14 CAA 01 0004, 2014 WL 6648987, at *1 (Ohio App. 5th Dist. Nov. 24,
2014). On November 24, 2014, the appellate court affirmed the judgment of the trial court. Id.
On April 29, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State
v. Castor, 142 Ohio St.3d 1452 (2015).
On February 18, 2015, Petitioner filed a motion for extension of time to file an
application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Motion for Extension of
Time to File under APP.R. 26(B) (ECF No. 8-1, PageID# 271). On March 25, 2015, the
appellate court granted that motion, but gave Petitioner until March 24, 2015, to file the Rule
26(B) application. Judgment Entry (PageID# 272). On April 10, 2015, Petitioner filed a delayed
Rule 26(B) application.

Appellant’s Delayed Application for Reopening (PageID# 273). On

April 28, 2015, the appellate court denied the motion because it was untimely and because the
court lacked jurisdiction to entertain the application due to Petitioner’s pending appeal in the
Ohio Supreme Court. Judgment Entry (PageID# 293). On May 4, 2015, Petitioner filed a motion
for a stay. Motion for Stay of Proceedings (PageID# 294). On June 15, 2015, the appellate court
denied that motion. Judgment Entry (PageID# 306). Petitioner filed a timely appeal from that
decision to the Ohio Supreme Court which, on August 26, 2015, declined to accept jurisdiction
of the appeal. State v. Castor, 143 Ohio St.3d 1447 (2015).
Petitioner filed this action on January 19, 2016. He alleges that he is being held in
violation of his right to proper venue (claim one); that he was denied the effective assistance of
trial counsel because his attorney failed to challenge the constitutionality of O.R.C. § 2901.12(H)
(claim two); that the State failed to present sufficient evidence to establish a unifying course of
conduct for trying Counts One through Thirty-One in Delaware, Ohio (claim three); that he was
convicted as a result of an impermissibly suggestive photo array (claim four); that he was denied

3

the effective assistance of appellate counsel (claim five); that the evidence is constitutionally
insufficient to sustain his convictions (claim six); that the trial court improperly imposed
sentences of “mandatory time” (claim seven); that he was denied his right to a fair and impartial
jury because one of the jurors kept falling asleep during trial (claim eight); and that he was
denied the effective assistance of trial counsel because his attorney failed to request a mistrial or
the seating of an alternate juror based on a juror falling asleep during trial (claim nine).
Respondent contends that Petitioner’s claims are procedurally defaulted or without merit.
Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a writ of
habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to
protect the constitutional rights of criminal defendants, however, and in order to prevent needless
friction between the state and federal courts, a state criminal defendant with federal
constitutional claims must first present those claims to the state courts for consideration. 28
U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may
present his claims, then his petition is subject to dismissal for failure to exhaust state remedies.
Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (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 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

4

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 used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977),
“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.”
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

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 has determined that
a state procedural rule was not complied with, and that the rule was 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

5

“cause and prejudice” analysis applies to failures to raise or preserve issues for review at the
appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, 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). 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.’” Edwards,
529 U.S. at 452 (quoting Murray, at 479). That is because, before counsel's ineffectiveness will
constitute cause, “that ineffectiveness 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). Or, if procedurally defaulted, 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
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
6

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)).
Id. at 452–53.
If, after considering all four factors of the Maupin test, a court concludes that a
procedural default has occurred, it 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, 477 U.S. at 495–96).
In claim six,1 Petitioner alleges that the evidence was constitutionally insufficient to
sustain his convictions. In claim seven, Petitioner alleges that the trial court erred in imposing
“mandatory time.” In claim eight, Petitioner alleges that he was denied his right to an impartial
jury because one of the jurors kept falling asleep during trial. In claim nine, Petitioner alleges
that he was denied the effective assistance of trial counsel because his attorney failed to request
the seating of an alternate juror or request a mistrial when one of the kept falling asleep during
trial. All these claims, being readily apparent from the face of the record, should have been
1

Respondent argues that claim three, in which Petitioner alleges that the State failed to establish a “unifying course
of conduct” such that the charges against him were appropriately brought in Delaware County, is likewise
procedurally defaulted based on Petitioner’s failure to raise this claim on direct appeal. However, the record reflects
that Petitioner in fact raised the same issue on direct appeal. See State v. Castor, 2014 WL 6648987, at *1.

7

raised on direct appeal, where Petitioner was represented by new counsel. However, Petitioner
failed to raise any of the foregoing claims on direct appeal. Further, he may now no longer do so
by operation of Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d (1982); State v.
Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967) (claims must be
raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata.). The
state courts were never given an opportunity to enforce the procedural rule due to the nature of
Petitioner's procedural default.
Moreover, Ohio's doctrine of res judicata is adequate and independent under the third
part of the Maupin test. To be “independent,” the procedural rule at issue, as well as the state
court's reliance thereon, must rely in no part on federal law. See Coleman, 501 U.S. at 732–33.
To be “adequate,” the state procedural rule must be firmly established and regularly followed by
the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established and
regularly followed state practice’ may be interposed by a State to prevent subsequent review by
this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S.
341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v.
Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964). The United States Court of Appeals for the
Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an
adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th
Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. Walker, 224
F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 2000); Norris v.
Schotten, 146 F.3d 314, 332 (6th Cir. 1998).
Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to
review the merits of claims because they are procedurally barred. See State v. Cole, 2 Ohio St.3d

8

at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the
state's interest in finality and in ensuring that claims are adjudicated at the earliest possible
opportunity. With respect to the independence prong, therefore, this Court concludes that Ohio's
doctrine of res judicata in this context does not rely on or otherwise implicate federal law.
Accordingly, the Court is satisfied from its own review of relevant case law that the Perry rule is
an adequate and independent ground for denying relief.
Petitioner may still secure review of the merits of these claims if he demonstrates cause
for his failure to follow the state procedural rule, as well as actual prejudice from the
constitutional violations that he alleges. “[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)). A
petitioner's pro se status, ignorance of the law, or ignorance of procedural requirements are
insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.
2004). Instead, in order to 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). Petitioner has failed to do so here.
As cause for his procedural default, and in habeas corpus claim five, Petitioner alleges the
denial of the effective assistance of appellate counsel. As noted supra, such a claim may
constitute cause sufficient to excuse a procedural default so long as the claim has been presented
to the state courts and is not, itself, procedurally defaulted. Edwards, 529 U.S. at 451-52. Here,
however, Petitioner procedurally defaulted his claim of denial of the effective assistance of
appellate counsel. The state appellate court explicitly denied Petitioner’s delayed Rule 26(B)
application as untimely, stating:

9

[T]his court granted appellant’s request for an extension until
March 24, 2015 to file the application. Appellant filed the
application on April 10, 2015 without leave of court or stating any
justifiable reason for the delay. Therefore, the filing is untimely.
Judgment Entry (ECF No. 8-1, PageID# 293).2 Consequently, the first and second parts of the
Maupin test have been met with respect to this claim. Further, the Sixth Circuit has recognized
that the timeliness requirement of Ohio Appellate Rule 26(B) is an adequate and independent
state ground for relief. Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008).
Petitioner nonetheless argues that he has established cause for the untimely filing of his
delayed Rule 26(B) application, stating that he did not receive notification of the appellate
court’s decision granting his motion for extension of time prior to March 24, 2015, and asserting
that the prison mailroom did not timely mail his Rule 26(B) application. Traverse (ECF No. 11,
PageID# 1752). However, “petitioner has the burden of showing cause and prejudice to
overcome a procedural default.” Hinkle, 271 F.3d at 245 (citing Lucas, 179 F.3d at 418 (internal
citation omitted)). Nothing in the record even suggests that Petitioner was prevented from or
could not have submitted his delayed Rule 26(B) application for filing by the date that he himself
had requested. Further, the Ohio Supreme Court has expressly rejected the “mailbox rule” of
Houston v. Lack, 487 U.S. 266, 270 (1988)(a pro se prisoner’s notice of appeal is considered to
be filed under federal law when he submits it to prison officials for mailing), and “[f]ederal
courts are obligated to accept as valid a state court's interpretation of state law and rules of
practice of that state.” Vroman v. Brigano. 346 F.3d 598, 604 (6th Cir. 2003). Therefore, this
Court will not reconsider the state appellate court’s determination that Petitioner failed to
establish good cause for his untimely filing of his Rule 26(B) application.

2

The appellate court also noted that it was without jurisdiction to entertain the application in view of Petitioner’s
pending appeal in the Ohio Supreme Court. (ECF No. 8-1, PageID# 293).

10

Petitioner also argues that the State “invited error” by arguing that the appellate court
lacked jurisdiction to consider his Rule 26(B) application, or that it would have been futile for
him to timely file the application while his appeal remained pending in the Ohio Supreme Court.
Petitioner also contends that the state court’s failure to timely notify him of its decision granting
his motion for an extension of time to file his delayed Rule 26(B) application constitutes “official
interference” which made his compliance with the time limitation impractical. Traverse (ECF
No. 11, PageID# 1752-53). These arguments are not persuasive. Again, Petitioner does not
explain why he did not submit his Rule 26(B) application by the date requested by him – March
24, 2015. Thus, Petitioner has procedurally defaulted his claim of the denial of the effective
assistance of appellate counsel and Petitioner has failed to establish cause and prejudice for the
procedural default of claim five. In reaching this conclusion, the Court also concludes that
petitioner has likewise failed to establish cause for his procedural default in failing to raise
claims six through nine on direct appeal.
The United States Supreme Court has held that a claim of actual innocence may also be
raised “to avoid a procedural bar to the consideration of the merits of [the petitioner's]
constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326–27 (1995). “[I]n an extraordinary
case, where a constitutional violation has probably resulted in the conviction of one who is
actually innocent, a federal habeas court may grant the writ even in the absence of a showing of
cause for the procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held
that a credible showing of actual innocence was sufficient to authorize a federal court in reaching
the merits of an otherwise procedurally-barred habeas petition.

Schlup, 513 U.S. at 317.

However, the actual innocence claim is “‘not itself a constitutional claim, but instead a gateway

11

through which a habeas petitioner must pass to have his otherwise barred constitutional claim
considered on the merits.’” Id. at 315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual innocence exception allows a petitioner to pursue his constitutional claims if it
is “more likely than not” that new evidence—not previously presented at trial—would allow no
reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577
(6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained the exception as follows:
The United States Supreme Court has held that if a habeas
petitioner “presents evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.” Schlup, 513 U.S. at
316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is
whether “new facts raise[ ] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at 317,
513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual
innocence, “a petitioner must show that it is more likely than not
that no reasonable juror would have found petitioner guilty beyond
a reasonable doubt.” Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court has noted that “actual innocence means
factual innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828
(1998). “To be credible, such a claim requires petitioner to support
his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130
L.Ed.2d 808. The Court counseled however, that the actual
innocence exception should “remain rare” and “only be applied in
the ‘extraordinary case.’” Id. at 321, 513 U.S. 298, 115 S.Ct. 851,
130 L.Ed.2d 808.
Souter, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards here.
After an independent review of the record, the Court does not deem this to be so extraordinary a
case as to relieve petitioner of his procedural default.

12

Petitioner has waived this Court’s review of the merits of claims five, six, seven, eight
and nine.
Merits
Standard of Review
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the
Antiterrorism and Effective Death Penalty Act (“the AEDPA”) govern this case. The United
State Supreme Court has described the AEDPA as “a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court” and has 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 statecourt rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal
quotation marks, citations, and footnote omitted).
The AEDPA limits the authority of a federal court to issue a writ of habeas corpus with
respect to a “claim that was adjudicated on the merits in State court proceedings” unless the state
court decision either:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). Further, under the AEDPA, the factual findings of the state court are
presumed to be correct:

13

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). Accordingly, “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)). 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 AEDPA's standards rests with the

petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).
Claim One
In claim one, Petitioner alleges that he was denied his “right to proper venue” because the
State tried him in Delaware County on charges that were alleged to have occurred in Franklin

14

County. Petition (ECF No. 3, PageID# 25). However, this claim does not provide a basis for
federal habeas corpus relief.
While the “vicinage” clause of the Sixth Amendment to the United
States Constitution guarantees the right to be tried by a jury of the
district in which the crime has been committed, this right only
applies to federal criminal trials and the Fourteenth Amendment
did not extend the vicinage clause to state criminal trials. Caudill v.
Scott, 857 F.2d 344, 345–46 (6th Cir.1988); accord Stevenson v.
Lewis, 384 F.3d 1069, 1071 (9th Cir.2004). Even in a federal
criminal trial, failure to establish venue is not grounds for federal
habeas relief, because, “in the absence of any allegation of bad
faith on the part of the Government or prejudice to the defendant,
improper venue will not ordinarily result in a ‘miscarriage of
justice,’ and presents no extraordinary need for post-conviction
relief.” Williams, 582 F.2d at 1042.
Wilson v. Berghuis, No. 09-14787, 2013 WL 757023, at *5 (E.D. Mich. Feb. 28, 2013)(citing
Williams v. United States, 582 F.2d 1039, 1041 (6th Cir. 1978)(claim of improper venue not
cognizable in habeas corpus review)).
Claim one is without merit.
Claim Two
In claim two, Petitioner alleges that he was denied the effective assistance of trial counsel
because his attorney failed to challenge the constitutionality of O.R.C. § 2901.12(H), Ohio’s
venue statute. The state appellate court rejected this claim in relevant part as follows:
R.C. 2901.12 governs venue. Subsection (H) states the following:
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be
tried for all of those offenses in any jurisdiction in which one of
those offenses or any element of one of those offenses occurred.
Without limitation on the evidence that may be used to establish
the course of criminal conduct, any of the following is prima-facie
evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
15

(2) The offenses were committed by the offender in the offender's
same employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender's line of travel
in this state, regardless of the offender's point of origin or
destination.
***
Appellant claims his trial counsel was ineffective for not making a
constitutional challenge to R.C. 2901.12(H).
The standard this issue must be measured against is set out in State
v. Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of
the syllabus. Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless
and until counsel's performance is proved to have fallen below an
objective standard of reasonable representation and, in addition,
prejudice arises from counsel's performance. (State v. Lytle [1976],
48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v.
Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the
result of the trial would have been different.
As the Supreme Court of Ohio explained in State v. Draggo, 65
Ohio St.2d 88, 90–91 (1981), in reviewing former R.C. 2901.12(G)
and (H), the statutes embrace the mobility of our society:
Venue is not a material element of any offense charged.
The elements of the offense charged and the venue of the
matter are separate and distinct. State v. Loucks (1971), 28
Ohio App.2d 77, 274 N.E.2d 773, and Carbo v. United
States (C.A.9, 1963), 314 F.2d 718. Yet, in all criminal
16

prosecutions, venue is a fact that must be proved at trial
unless waived. State v. Nevius (1947), 147 Ohio St. 263,
71 N.E.2d 258.
R.C. 2901.12(G) and (H) are statutory reflections of the
modern mobility of criminals to perform unlawful deeds
over vast geographical boundaries. The above-noted
statutory provisions effectuate a sensible, efficient
approach to justice by permitting one court to hear a
matter which has roots in several court jurisdictions.
Dissection of the relevant provisions, namely R.C.
2901.12(A) and (H) and, more specifically, (G), explicitly
denotes that venue is proper if “ * * * (the) offense or any
element” was committed in the court's jurisdiction.
Since 1988, the Ohio General Assembly expanded the types of
criminal cases that could be tried intra-jurisdictional[ly]. It is
uncontested that the first thirty-one counts of the indictment
occurred in Franklin County and the remaining eleven counts
occurred in Delaware County. At the conclusion of the state's casein-chief, defense counsel made a Crim.R. 29 motion for acquittal
and strenuously objected to venue and a course of criminal conduct
for the counts that occurred in Franklin County. T. at 1006–1048.
Although defense counsel did not specifically attack venue as to
the constitutionality of R.C. 2901.12(H), he articulated the lack of
proof of a course of criminal conduct, emphasizing R.C.
2901.12(H)(1), (4), and (5). In response to the motion, the
prosecutor outlined the following (T. at 1009–1010):
Count One did occur in Franklin County. However, it
does show some of the same characteristics that we were
talking about in the other incidences, something repeated
three separate ways. We have shown a course of criminal
conduct.
First being the offense involved the victim, same type of
the same group, being apartment tenants.
Secondly, the offense was committed as a part of the
same transaction or chain of events or in furtherance of
the same pure objective; all of the counts occurred over a
period of time, ten different dates, all occurred within a
three months' time period of each other.

17

There's no large gap here. In fact, the last one in Franklin
County is on August 2nd, first one we have in Delaware
County is August 7th, which is five days later, they all,
again, all of the burglaries in the apartment complexes.
Additionally, these occurred at the same times, and the
same general items were taken in each case: TV's;
laptops; video game systems, jewelry, all of these items
that are resale pawn value, they are not stealing items that
can't be pawned for money. We believe the evidence has
shown all the same chain of events, all committed for the
same purpose or objective.
Finally, and probably most importantly, is the offense
involves the same or similar modus operandi, it does not
single one of the burglary counts that occurred in a home
[sic]; every time it was in an apartment; every time it was
in an apartment complex with multiple units; every single
time it was in the daytime; and I believe all but one case
there was force used to a door to gain entry; there's not a
situation where windows were smashed or a glass door
smashed to gain entry. Also, all of them we'll see pry bar
marks.
Many times an individual was observed with a clipboard
in the area beforehand. We have the same types of vans
that are used in all of the offenses, and in the numerous
times indicated. The witnesses see a van being present,
and Mr. Castor did generally in both cases get into this
type of vehicle.
At the time of the trial, the case of State v. DeBoe, 6th Dist. Huron
No. H02–057, 2004–Ohio–403 was unchallenged. In DeBoe at ¶
37–38, our brethren from the Sixth District specifically addressed
the constitutionality of R.C. 2901.12(H) as follows:
For a statute to be declared unconstitutional, “it must
appear beyond a reasonable doubt that the legislation and
constitutional provisions are clearly incompatible.” State
ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142,
128 N.E.2d 59, paragraph one of the syllabus. Accord
State v. Thompkins (1996), 75 Ohio St.3d 558, 560, 664
N.E.2d 926. “Further, doubts regarding the validity of a
legislative enactment are to be resolved in favor of the
statute.” State v. Gill (1992), 63 Ohio St.3d 53, 55, 584
N.E.2d 1200, citing State ex rel. Swetland v. Kinney
(1982), 69 Ohio St.2d 567, 433 N.E.2d 217.
18

The Ohio Constitution guarantees to its citizens, “a
speedy trial by an impartial jury of the county in which
the offense is alleged to have been committed * * *.”
Section 10, Article 1, Ohio Constitution. The primary
purpose of this constitutional provision is to fix the place
of trial. State v. Fendrick (1907), 77 Ohio St. 298, 300, 82
N.E. 1078. This constitutional principle was embodied by
the legislature in R.C. 2901.12, which provides that, “the
trial of a criminal case in this state shall be held in a court
having jurisdiction of the subject matter, and in the
territory of which the offense or any element of the
offense was committed.” The statutory “any element” rule
was approved by the Ohio Supreme Court in State v.
Draggo (1981), 65 Ohio St.2d 88, 418 N.E.2d 1343. R.C.
2901.12 merely provides the criteria for which territory an
offender may be tried for multiple offenses which involve
different jurisdictions or venues. Since R.C. 2901.12 does
not deprive an offender of his right to a properly venued
jury trial, it is not incompatible with the Ohio
Constitution. Therefore, R.C. 2901.12 is not
unconstitutional.
Appellant argues two cases that support his attack on the
constitutionality of R.C. 2901.12(H), State v. Chalikes, 122 Ohio
St. 35 (1930) and State v. Nevius, 147 Ohio St. 263 (1947). These
cases were decided long before the Modern Courts Amendment
(1968) and R.C. 2901.12 were enacted. These cases challenged
venue on a single count, not a series of criminal acts linked
together via similarity of victim and modus operandi, and in
furtherance of the same criminal conspiracy. Therefore, we find
the cases to be inapplicable sub judice.
Using the two-prong test of Bradley and Strickland, we find
defense counsel properly articulated the venue issue to the trial
court, and do not find any deficiency in his performance.
State v. Castor, 2014 WL 6648987, at *1-4.
“In all criminal prosecutions,” the Sixth Amendment affords “the accused. . . the right. . .
to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing
19

claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984).
Strickland requires a petitioner claiming ineffective assistance of counsel to demonstrate that his
counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687; Hale v.
Davis, 512 Fed.Appx. 516, 520 (6th Cir. 2013). A petitioner “show[s] deficient performance by
counsel by demonstrating ‘that counsel's representation fell below an objective standard of
reasonableness.’” Poole v. MacLaren, 547 F.Appx. 749, 754 (6th Cir. 2013) (quoting Davis v.
Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted) and citing
Strickland, 466 U.S. at 687). To make such a showing, a petitioner “must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). See also Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland,
466 U.S. at 689).
Petitioner argues that the state appellate court, in concluding that O.R.C. § 2901.12(H)
did not violate the Ohio Constitution, contravened the Ohio Supreme Court’s decision in State v.
Chalikes, 122 Ohio St. 35 (1930). Traverse (ECF No. 11, PageID# 1757-58). He also argues that
the state appellate court misconstrued State v. Draggo, 65 Ohio St.2d 88 (1981). Finally,
Petitioner claims that he was prejudiced by his trial counsel’s failure to raise the issue, as
evidenced by the state appellate court’s refusal to address the merits of the issue on direct
appeal.3

3

The state appellate court in fact refused to address the merits of Petitioner’s challenge to the constitutionality of
O.R.C. § 2901.12(H) because of his attorney’s failure to raise the issue at trial:
We note this constitutional argument was not made to the trial court. “‘An appellate court will not
consider any error, including constitutional error, which counsel for a complaining party could
have, but failed to call to the trial court's attention at a time when such error could have been
avoided by the trial court .’ In re 730 Chickens (1991), 75 Ohio App.3d 476, 488, 599 N.E.2d 828,
citing, State v.1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524.” In re

20

In State v. Draggo, 65 Ohio St.2d at 90, the Ohio Supreme Court stated:
R.C. 2901.12(G) and (H) are statutory reflections of the modern
mobility of criminals to perform unlawful deeds over vast
geographical boundaries. The. . . statutory provisions effectuate a
sensible, efficient approach to justice by permitting one court to
hear a matter which has roots in several court jurisdictions.
Id. Moreover, and despite Petitioner’s argument to the contrary, Ohio courts have repeatedly
approved the application of § 2901.12(H) in addressing the issue of venue in criminal cases.
See, e.g., State v. Beuke, 38 Ohio St.3d 29, 41 (1988); State v. Jackson, 141 Ohio St.3d 171, 198
(2014); State v. Hackworth, 80 Ohio App.3d 362, 366 (Ohio App. 6th Dist. May 29, 1992); State
v. Giffin, 62 Ohio App.3d 396, 399 (Ohio App. 10th Dist. April 11, 1991). In any event, this
Court must defer to the state’s interpretation of its own laws. See Calhoun v. Tibbals, No. 2:15cv-03026, 2017 WL 914737, at *9 (S.D. Ohio March 8, 2017)(citing Machin v. Wainwright, 758
F.2d 1431, 1433 (11th Cir. 1985); Beavers v. Franklin County Adult Probation, No. 2:13-cv00404, 2016 WL 5660275, at *1 (S.D. Ohio Sept. 29, 2016)(citation omitted). Because Ohio
courts have consistently affirmed the constitutionality of the Ohio statute challenged by
Petitioner, Petitioner cannot establish the denial of the effective assistance of counsel under the
two-prong Strickland test based on his attorney’s failure to raise the issue.
Claim two is without merit.
Claim Three
In claim three, Petitioner alleges that the State failed to present evidence of a unifying
course of conduct sufficient to try Counts One through Thirty-One in Delaware County, as is

Retaining Vorys, Sater, Seymour & Pease, L.L.P., as Special Counsel, 192 Ohio App.3d 357,
2011–Ohio–640, ¶ 24.
Because the constitutionality of the statute was not raised at the trial level, we deny Assignment of
Error I.
State v. Castor, 2014 WL 6648987, at *2.

21

required by O.R.C. § 2901.12(H). The state appellate court rejected this claim in relevant part as
follows:
Appellant claims R.C. 2901.12(H) does not apply to the first thirtyone counts because the evidence failed to show a unifying course
of criminal conduct as required in the statute. We disagree.
The evidence establishes certain factors that are applicable to R.C.
2901.12(H)(1), (4), and (5) to determine a course of criminal
conduct including the same type of victim (dwellers of apartment
complexes), same or similar modus operandi (daytime, pry bar use,
maintenance person disguise, minivan, similar objects stolen), and
“furtherance of the same conspiracy.” T. at 88–92, 99, 101–103,
128, 130–132, 152, 168, 170–172, 182–183, 210–212, 217, 222,
225, 229–230, 234, 237–239, 246, 248–249, 257–260, 262, 264–
265, 272–273, 331–332, 342, 347–349, 355, 357–358, 440, 444,
450, 453–454, 466, 474, 476, 530, 533, 547–548, 566–570, 610,
720, 722, 726, 731, 743–745, 753, 764, 772, 774–777, 804, 809–
810, 827, 833, 835, 865.
The indictment set forth a time frame of the offenses from May 24,
2013 to August 21, 2013, beginning in Franklin County and
terminating in Delaware County. The forty-two count indictment
included burglaries, an attempted burglary, a theft, possession of
criminal tools, and receiving stolen property. The burglaries and
thefts were from apartments broken into with a pry bar during the
daylight, working hours (with the exception of one), when the
victims were unlikely to be home. With the exception of two
apartments, all were cluster apartments in complexes and
numerous apartments were entered into in each complex. The
counts did not include a single home.
Of note, all of the Franklin County addresses, except for the Canal
Winchester address, are within the immediate proximity of the
northwest loop of I–270.
The types of property taken were televisions, laptops, video game
systems, electronic equipment, guitars, blankets, and jewelry. T. at
91–92, 103, 132, 172, 217, 229–230, 239, 249, 265, 342, 355, 357–
358, 450, 453–454, 474, 476, 533, 731, 753, 775–776, 809–810. At
the first burglary, a silver Chevy Venture minivan was stolen. T. at
103, 106. Witnesses identified the same type of minivan at other
burglaries. T. at 152, 183, 262, 272, 347, 827. A clipboard was also
stolen, seen at subsequent burglaries and ultimately recovered
during appellant's arrest. T. at 132, 259–260, 273, 348, 610, 764,
22

865, 942–943. A partial license plate number on the minivan was
identified and later the same plate, as well as other license plates,
were recovered during appellant's arrest. T. at 946–947. Items that
appellant used in disguising himself were also recovered during his
arrest (red hat, pry bar, bucket of tools, clipboard). T. at 578–583,
927–928, 930–932, 942–947. Appellant's DNA was identified on
the red hat. T. at 647–648, 651–653. Appellant had pawned many
of the stolen items. T. at 388–396.
All of these similarities do not imply simple coincidences, but a
definitive pattern of burglaries by the same individual. The
ultimate connections were the items seized in the minivan during
appellant's arrest. These items were specifically identified by
witnesses who observed appellant and/or the minivan at the scene
of various burglaries (North High Street Apartments, Sanctuary
Village, North Star Avenue Apartments).
We find the facts were sufficient for prosecution of the Franklin
County offenses in Delaware County under R.C. 2901.12(H).
State v. Castor, 2014 WL 6648987, at **5. Petitioner argues that the state appellate court’s
decision was unreasonable. Traverse (ECF No. 11, PageID# 1759-60). However, Petitioner’s
claim, again, involves the state court’s interpretation of state law. Such a claim does not provide
a basis for federal habeas corpus relief.
This Court may review a state prisoner’s habeas petition only on the ground that the
challenged confinement violates the Constitution, laws or treaties of the United States, and not
“on the basis of a perceived error of state law.” 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S.
37, 41 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)(“[I]t is not the province of
a federal court to reexamine state-court determinations on state-law questions.”) Moreover, as
noted supra, this Court must defer to a state court’s determination of its own laws.
Claim three does not warrant relief.

23

Claim Four
In claim four, Petitioner alleges that he was denied a fair trial because the identification at
trial by witness Stephany Bevan of Petitioner as the perpetrator was based on an impermissibly
suggestive photo array presented to her prior to trial. Petitioner specifically complains that
police improperly used a photo array that contained photographs of five Hispanic males and of
Petitioner, the only non-Hispanic person whose photograph was shown. Traverse (ECF No. 11,
PageID# 1762). The state appellate court rejected this claim, reasoning as follows:
Appellant claims the trial court erred in permitting identification
testimony derived from an impermissibly suggestive photographic
lineup. We disagree.
In State v. Wills, 120 Ohio App.3d 320, 325 (8th Dist.1997), our
brethren from the Eighth District explained the following:
When deciding motions to suppress photographic identification
procedures, the courts must determine whether the photos or
procedures used were “so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable misidentification.”
Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967,
971, 19 L.Ed.2d 1247, 1253. Suggestiveness depends on several
factors, including the size of the array, its manner of presentation,
and its contents. Reese v. Fulcomer (C.A.3, 1991), 946 F.2d 247,
260. Stated otherwise, the test is “whether the picture of the
accused, matching descriptions given by the witness, so stood out
from all of the photographs as to suggest to an identifying witness
that [that person] was more likely to be the culprit.” Jarrett v.
Headley (C.A.2, 1986), 802 F.2d 34, 41.
We note appellant never filed a motion to suppress. On the fifth
day of trial, defense counsel moved for a mistrial and to dismiss
the indictment based upon an improperly created photo lineup
(State's Exhibit 41). Despite the lack of a motion to suppress, the
trial court entertained the issue, ruling as follows in a judgment
entry filed November 19, 2013:
The Court specifically finds that the State did not violate
the terms of § 2933.83.

24

The Court must now turn to the case law. In considering
the case law, the Court finds the “photo array”
complained of was not “unusually suggestive.” The Court
finds the features of the Defendant are greatly similar to
the other individuals whose pictures were used. State v.
Hudson, 2009 WL 252362 and State v. Gloss, 2010 WL
3377784. The fact that all five of the other photos were
Hispanic does not mean that the others did not have
features similar to the Defendant. Furthermore, the photo
line-up included men that fit within the general
description given by the witness. State v. Gomez, 2005
WL 742702.
The Court does not find the photo array to be suggestive.
The Defendant's motion is therefore Overruled.
The testimony concerning the identification of appellant using the
photo array occurred during the second day of trial. Stephany
Bevan testified she immediately identified photograph number
three as the perpetrator because of his eyes. T. at 281282. She did
not know if the photograph was of a Hispanic, but the eyes were
the determining factor. T. at 285.
Columbus Police Detective Richard Moore testified to showing the
blind photo array to Ms. Bevan. T. at 291. Detective Moore was
not responsible for the make-up of the array so as not to show any
favoritism to the suspect. T. at 289–290.
Columbus Police Detective Kevin Grooms made up the photo
array after appellant was already a suspect (State's Exhibit 177). T.
at 626. He used the most recent photograph of appellant. T. at 626–
627. In setting up the photo array, Detective Grooms used
identifying characteristics to match other photographs to the
suspect's. T. at 627–628. He used “[m]ale, Hispanic, age range.” T.
at 628. He entered Hispanic because appellant reminded him of a
military friend who was Hispanic and his name was of Hispanic
origin. Id. Both the photo array and the number three photograph
identified by Ms. Bevan were marked and received as State's
Exhibits 41 and 177 without objection.
Given the testimony of Ms. Bevan and Detective Grooms and the
exhibits themselves, we find the photo array was not impermissibly
suggestive and did not cause appellant to stand out from the others.
State v. Castor, 2014 WL 6648987, at **6-7.

25

Due process prohibits identification testimony based upon a pre-trial procedure that is so
“impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986) (quoting Simmons v.
United States, 390 U.S. 377, 384 (1968)); see also Stovall v. Denno, 388 U.S. 293 (1967). “It is
the likelihood of misidentification which violates a defendant's right to due process.” Neil v.
Biggers, 409 U.S. 188, 198 (1972). In resolving a claim of improper pre-trial identification
procedures, a court must first determine whether the procedures employed were unduly
suggestive. Ledbetter v. Edwards, 35 F.3d 1062, 1070–71 (6th Cir. 1994). If so, the court must
then consider the totality of the circumstances in order to determine if the identification is
nevertheless reliable. Id. at 1070 (citing United States v. Hill, 967 F.2d 226, 230 (6th Cir.
1992)). See also Neil v. Biggers, 409 U.S. at 199–200; Thigpen v. Cory, 804 F.2d at 895. In
making this determination, the court must consider the following five 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, 35 F.3d at 1070 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v.
Biggers, 409 U.S. at 199–200)).
Stephany Bevan testified at Petitioner’s trial that, on June 25, 2013, she was visiting her
mother at 132 Sanctuary Village Drive.

Transcript (ECF No. 8-3, PageID# 632).

At

approximately 11:25 a.m., they decided to go to the Giant Eagle grocery store. Id. (PageID#
633). She noticed a tannish-gray minvan parked with a man sitting inside. Id. (PageID# 634).
The man was holding a silver clipboard, and she thought that he was there to make an estimate

26

for the power wash of the breezeway of the building. Id. (PageID# 635). They looked at each
other. Id. (PageID# 635). They made eye contact. Id. (PageID# 644).
It was just a second. He looked up from the clipboard, I looked at
him, I looked at my mom, he looked at me and my mom, and I said
do you think I should lock my car doors, she said we’ll just be
gone a few minutes.
Id. (PageID# 648). He had short buzzed hair, dark brown eyes, and what looked like a
maintenance type gray short sleeved shirt. Id. (PageID# 636). When Ms. Bevan and her mother
returned, they found that her mother’s home had been robbed.

Id. (PageID# 637).

On

September 12, 2013, detectives came to her workplace. Id. (PageID# 640). She was immediately
able to identify Petitioner’s photograph as the individual she had seen on the day that her
mother’s house had been broken into. Id. (PageID# 644). “I knew the eyes. . . . That’s it. I
mean, there was no guessing, second guessing, that was it. . . . I just knew.” Id. (PageID# 644).
Petitioner argues that the state court was unreasonable in its finding that Petitioner’s
features and the features of all of the other individuals included in the photo array were similar in
appearance. Traverse (ECF No. 11, PageID# 1763-64). However, the Court has reviewed the
photocopy of the photo array used by police during the course of the pre-trial identification
procedures that resulted in the identification of Petitioner as the perpetrator. Exhibit attached to
Appellant’s Brief (ECF No. 8-1, PageID# 172). Upon its own review of that document, the
Court is not persuaded that the photo array was unduly suggestive so as to warrant disregarding
the state court’s finding of fact and granting federal habeas corpus relief. The record simply
does not support Petitioner’s assertion that his photograph stands out from the photographs of the
five other men depicted in the photo array. Further, nothing in the record indicates that police
acted improperly or suggested to Stephany Bevan which photograph she should choose when
obtaining Petitioner’s identification as the perpetrator.
27

Claim four is without merit.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
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).
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
April 13, 2017
28