Rogers v. Warden, Belmont Correctional Institution

Filing 13

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that this action be DISMISSED re 5 Petition for Writ of Habeas Corpus filed by Alterik Rogers. Objections to R&R due by 5/14/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on April 30, 2018. (jlk) (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
ALTERIK ROGERS,
Petitioner,

CASE NO. 2:16-CV-0638
JUDGE ALGENON L. MARBLEY
Chief Magistrate Judge Elizabeth P. Deavers

v.
WARDEN, BeCI,
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, Respondent’s Return of
Writ, Petitioner’s Traverse, 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 Seventh District Court of Appeals summarized the facts and procedural history
of the case as follows:
On January 4, 2014 at approximately 6:30 in the evening multiple
shots were fired at the driver’s side of a Jeep Cherokee driven by
Robert Washington in the Pleasant Heights section of Steubenville,
Ohio. Tr. 112, 116. Washington stated he had just left Pleasant
Food Mart, drove up Maxwell Street towards State Street, and
upon turning left onto Lawson Avenue multiple shots were fired at
his vehicle by Appellant, Washington’s former neighbor. Tr. 118,
130, 139. According to Washington, Appellant parked his white
Acura on State Street, exited the vehicle, stood on the curb of the
street, and fired the shots towards Washington’s vehicle. Tr. 138–
139. Washington immediately drove to his house on Lawson
Avenue and called the police.
The vehicle was riddled with 8 bullet holes, all on the driver’s side.
One bullet traveled through the vehicle, bruised Washington’s left

thigh, and landed in his jacket pocket along with glass from the
windows. Fortunately, Washington sustained no other injuries.
Two witnesses at the scene testified that after firing multiple shots,
the gunman got into a white car parked on State Street and sped off
down the alley between Lawson Avenue and Maxwell Street. Tr.
185, 190. Neither witness could identify the shooter. Tr. 187, 193.
As a result of this incident, Appellant was questioned. He gave
multiple accounts of his whereabouts during the shooting. A
gunshot residue test was performed on his hands and his clothing
was taken into evidence.
Thereafter, he was indicted on one count of felonious assault in
violation R.C. 2903.11(A)(2), a second-degree felony, and one
count of having a weapon while under disability in violation of
R.C. 2923.13(A)(3), a third-degree felony. The felonious assault
charge contained an attendant firearm specification, a violation of
R.C. 2941.145. There was a third charge in the indictment,
Menacing by Stalking. However, it was severed at the request of
Appellant and tried separately.
The trial on the remaining two charges occurred on June 4, 2014.
The jury found Appellant guilty of the two charges and the firearm
specification. Sentencing occurred on July 2, 2014; Appellant was
sentenced to an aggregate term of 14 years. 7/2/14 J.E. He received
an 8 year sentence for the felonious assault conviction, a
mandatory 3 year sentence for the firearm specification, and a 3
year sentence for the weapons under disability conviction. All
sentences were ordered to be served consecutive to each other.
7/2/14 J.E.
Appellant timely appealed his conviction and sentence.
State v. Rogers, 34 N.E.3d 521 (Ohio 7th App. Dist. 2015).

Petitioner asserted that his

convictions on felonious assault and having a weapon while under a disability were against the
manifest weight of the evidence, that the trial court violated Ohio law when it imposed a
maximum consecutive sentence, that he was denied the effective assistance of counsel, and that
the “true copy” of a prior felony drug conviction from New Jersey failed to establish that he was
under disability during the commission of the felonious assault. Id. at 522. On June 1, 2015, the

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appellate court affirmed the judgment of the trial court, but reversed his conviction on having a
weapon while under disability and vacated his sentence on that charge.

Id. at 530.

On

September 30, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State
v. Rogers, 143 Ohio St.3d 1481 (Ohio 2015).
On August 17, 2016, Petitioner filed this pro se Petition. He asserts that his conviction
on having a weapon while under disability was against the manifest weight of the evidence
(claim one);1that he was denied the effective assistance of trial counsel (claim two); and that the
trial court improperly admitted evidence of his prior conviction (claim three). It is the position
of the Respondent that Petitioner’s claims lack merit.
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 AEDPA is “a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court;” federal 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)).

1

This appears to be in error. Petitioner also refers to his conviction on felonious assault. Petition (ECF No. 5,
PageID# 52.) The Court presumes that he intends to challenge his felonious assault conviction, since the state
appellate court has already reversed his conviction on having a weapon while under a disability and vacated his
sentence on that charge.

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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). Moreover, “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), (2). The United States Court of Appeals for the Sixth Circuit has explained these
standards as follows:
A state court’s decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular . . .
case” or either unreasonably extends or
unreasonably refuses to extend a legal principle from Supreme
Court precedent to a new context. Id. at 407, 529 U.S. 362, 120
S.Ct. 1495, 146 L.Ed.2d 389.
Coley, 706 F.3d at 748–49. The burden of satisfying the standards of § 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

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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
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 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). 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 only on the record that was before it at the
time it rendered its decision.

Pinholster, 563 U.S. at 181.

Put simply, “review under §

2254(d)(1) focuses on what a state court knew and did.” Id. at 182.
Claim One
In claim one, Petitioner asserts that his conviction on felonious assault was against the
manifest weight of the evidence. This claim fails to provide a basis for federal habeas corpus
relief. See Taylor v. Warden, Lebanon Correctional Institution, No. 2:16-cv-237, 2017 WL
1163858, at *10 (S.D. Ohio March 29, 2017)(citing Williams v. Jenkins, No. 1:15cv00567, 2016

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WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v. Eberlin, 258 Fed.Appx. 761, 765,
n. 4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb.
9, 2017)(citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3 (S.D.
Ohio))(“Whether a conviction is against the manifest weight of the evidence is purely a question
of Ohio law.”).
Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—
as opposed to one based upon insufficient evidence—requires the appellate court to act as a
“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility
of witnesses to determine whether “the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983); cf. Tibbs v. Florida, 457 U.S. 31
(1982). Since a 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.
Petitioner requests the Court to construe this claim as a constitutional challenge to the
sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (1979). However, Petitioner
failed to raise this same issue in the state appellate court. In order to satisfy the exhaustion
requirement in habeas corpus, a petitioner must fairly present the substance of each constitutional
claim to the state courts as a federal constitutional claim. Anderson v. Harless, 459 U.S. 4, 6
(1982); Picard v. Connor, 404 U.S. 270, 275 (1971). Although the fair presentment requirement
is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S. 346, 349 (1989); O’Sullivan
v. Boerckel, 526 U.S. 838, 844–45 (1999), it is rooted in principles of comity and federalism
designed to allow state courts the opportunity to correct the State’s alleged violation of a federal

6

constitutional right that threatens to invalidate a state criminal judgment. In the Sixth Circuit, a
petitioner can satisfy the fair presentment requirement in any one of four ways: (1) reliance upon
federal cases employing constitutional analysis; (2) reliance upon state cases employing federal
constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts
well within the mainstream of constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir. 2000). Further, general allegations of the denial of a constitutional right, such as the right to
a fair trial or to due process, are insufficient to satisfy the “fair presentment” requirement. Id.
Even liberally construing his pleadings, the record does not indicate that Petitioner raised
a claim that the evidence was constitutionally insufficient to sustain his convictions in the state
appellate court. He argued instead only that his convictions were against the manifest weight of
the evidence. He referred to state law in support of that claim. He did not reference Jackson v.
Virginia, 443 U.S. at 307, the seminal case on insufficiency of the evidence or any federal cases
in support of his claim, nor did he refer to state cases relying on federal law regarding the law on
insufficiency of the evidence. Petitioner likewise did not refer to the United States Constitution
or the Due Process Clause in support of his claim. See Merit Brief of Appellant (ECF No. 8-1,
PageID# 113, 130-33.) This Court therefore simply cannot conclude that Petitioner preserved
for federal habeas corpus review a claim that the evidence was constitutionally insufficient to
sustain his conviction by raising a claim that his conviction was against the manifest weight of
the evidence. See Morris v. Hudson, No. 5:06-cv-2446, 2007 WL 4276665, at 2-3 (N.D. Ohio
Nov. 30, 2007) (citations omitted). Moreover, Petitioner has failed to establish cause for such
failure. Therefore, Petitioner has waived such claim for review in these proceedings.

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Further, the record reflects that constitutionally sufficient evidence supported Petitioner’s
conviction. The state appellate court rejected Petitioner’s arguments in relevant part as follows:
Appellant argues the convictions are against the manifest weight
because there is no competent credible evidence that he is the
gunman. He contends no gunshot residue was found in his vehicle
or on his clothes, and no witness, other than Washington, identified
him as the shooter. Appellant claims Washington’s testimony
established Washington has a personal animus towards Appellant.
This, according to Appellant, negates Washington’s credibility.
Appellant is correct that Washington was the only witness able to
identify Appellant as the shooter. However, Washington was
adamant that the shooter was Appellant. His testimony established
the two used to be neighbors. That testimony easily provides a
basis to establish that Washington would be able to identify
Appellant.
Admittedly, Washington’s testimony also indicates that the two
were not on good terms. Testimony and evidence established that
in 2012, when the two were neighbors, Washington called the
police because Appellant allegedly pulled a gun on him after the
two got into a fight over a parking space in front of their houses.
State’s Exhibit 6. This resulted in Appellant being charged with
aggravated menacing. Tr. 233. At the resolution of that case
Appellant received a 20 day sentence and a No Contact Order was
issued for Washington and his family. State’s Exhibits 9 and 10.
Also, two days prior to the shooting, there was another incident at
McDonald’s. Washington testified he was in his car going through
the drive-thru with his family when Appellant exited the restaurant
and made a hand gesture of a gun with the trigger being pulled at
Washington. Tr. 135.
Given the evidence, the jury was faced with a credibility
determination of whether to believe Washington’s identification.
Because the jury was in the best position to judge Washington’s
credibility and whether his personal issues with Appellant affected
his ability to correctly identify the shooter, we will not secondguess their determination.
Furthermore, the jury had before it circumstantial evidence which
linked Appellant to the shooting. Two eye witnesses did avow that
after the shooting, the shooter got into a white car and sped off up
the alley between Lawson Avenue and Maxwell Street. Tr. 185,
190. An officer testified a white Acura registered to Appellant was
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found in the alley between Maxwell Street and Lawson Avenue,
which is close to Appellant’s house on Park Street. Tr. 236, 237.
Another officer investigating the scene stated that footprints, that
showed a long stride, were found in the snow going away from the
white Acura toward Park Street. Tr. 349. This testimony would
support the conclusion that someone was running from the white
Acura toward Park Street. The officer that located and interviewed
Appellant shortly after the shooting stated Appellant said he had
been inside the residence. Tr. 204. However, the officer noticed
that Appellant was sweating profusely; the “sweat was rolling off
his face and off of his head.” Tr. 204. The jury concluded, given all
the above testimony, that the reason Appellant was sweating
profusely was because he had ran from his car to the house on Park
Street after the shooting.
Furthermore, a recorded phone call from Appellant and his
girlfriend while he was in jail was played for the jury. During this
phone call, Appellant tells his girlfriend to go to a boat that is
located near their home and to get something out of it. He
describes the item as grey and black. He tells her to hurry and
make sure no one is watching. He also says to hurry because
“they” may be listening. Once she finds it he tells her to give it to
someone to keep.
The state’s position is that this grey and black item that he wants
her to quickly find is the gun. This is a plausible conclusion given
his instructions for her to hurry, to make sure no one is watching
her, and considering that the item is described as black and grey.
Considering all of that evidence and the logical conclusions that
can be drawn from that evidence, it was logical for the jury to
conclude that Appellant was the shooter.
However, the above evidence was not the only evidence that
Appellant was the shooter. A gunshot residue test was also
performed on Appellant’s hands, clothing, and his white Acura.
The car, clothing, and sample from his left hand came back
negative for gunshot residue. However, the sample taken from
Appellant’s right hand came back positive, meaning that particles
were found that are highly indicative of gunshot primer residue. Tr.
299, 301. On cross-examination it was brought to light that the
least amount of particles that could be found were found on
Appellant’s right hand. Tr. 307.
Considering all of the above, the jury was in the best position to
determine Washington’s credibility. Furthermore, when
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considering all the evidence, it cannot be concluded that the jury
clearly lost its way and created a manifest miscarriage of justice;
given the evidence it is plausible and believable to conclude that
Appellant was the shooter and thus, he did commit felonious
assault and he did have a weapon in his possession.
This assignment of error is meritless.
State v. Rogers, 34 N.E.3d at 524. Petitioner has failed to meet his burden of rebutting the
presumption of correctness afforded to the state court’s findings of fact.
Before a criminal defendant can be convicted consistent with the United States
Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319. In determining whether the
evidence was sufficient to support a petitioner’s conviction, a federal habeas court must view the
evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296
(1992) (citing Jackson, at 319). The prosecution is not affirmatively required to “rule out every
hypothesis except that of guilt.” Id. (quoting Jackson, at 326). “[A] reviewing court ‘faced with
a record that supports conflicting inferences must presume—even if it does not appear on the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.’ ” Id. (quoting Jackson, at 326).
Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), deference must be given, first, to the jury’s finding of guilt because the
standard, announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Second, and even if a de novo
review of the evidence leads to the conclusion that no rational trier of fact could have so found, a

10

federal habeas court “must still defer to the state appellate court’s sufficiency determination as
long as it is not unreasonable.” See White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a
substantial hurdle for a habeas petitioner to overcome, and Petitioner cannot do so here.
For the reasons addressed by the state appellate court, when viewing all of the evidence
in the light most favorable to the prosecution, the evidence was constitutionally sufficient to
sustain Petitioner’s conviction on felonious assault. Washington’s testimony alone provided
constitutionally sufficient to establish Petitioner’s identity as the shooter. See Trial Transcript
(ECF No. 9-1, PageID# 379-80); Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (“[T]his
Court has long held that the testimony of the victim alone is constitutionally sufficient to sustain
a conviction.”) (citing United States v. Terry, 362 F.2d 914, 916 (6th Cir. 1966); O’Hara v.
Brigano, 499 F.3d 492, 500 (6th Cir. 2007); United States v. Howard, 218 F.3d 556, 565 (6th
Cir. 2000); United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996)).
Claim one is procedurally defaulted and without merit.
Claim Two
In claim two, Petitioner asserts that he was denied the effective assistance of trial counsel,
because his attorney asked open ended questions on cross-examination regarding prior incidents
between Washington and Petitioner, and failed to file a motion to suppress evidence of
Petitioner’s phone call from the jail to his girlfriend and BCI test results on gunshot residue tests.
Petitioner additionally complains that his attorney failed to object to a discovery violation by the
prosecutor, failed to move to strike Washington’s testimony that Petitioner wanted to sell drugs
on the side of his house on Park Street, failed to object to admission of Petitioner’s written
statement by Officer Crawford, and failed to object to Washington’s reference to Petitioner as an
“animal.” (ECF No. 5, PageID# 68-9.)

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The state appellate court rejected Petitioner’s claim of ineffective assistance of counsel as
follows:

We review a claim of ineffective assistance of counsel under the
two-part test articulated in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). Specifically, a reviewing
court will not deem counsel’s performance ineffective unless a
defendant can show his lawyer’s performance fell below an
objective standard of reasonable representation and prejudice arose
from the lawyer’s deficient performance. State v. Bradley, 42 Ohio
St.3d 136, 142–143, 538 N.E.2d 373 (1989). When evaluating the
performance of counsel, “courts ‘must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.’ ” State v. Wesson, 137 Ohio
St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 81. To demonstrate
prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland at 694, 104 S.Ct. 2052
Appellant directs this court to multiple examples of what he claims
is ineffective assistance of counsel. He contends open ended
questions were asked on cross examination about other incidents
that occurred between Washington and Appellant. He also
contends counsel should have filed suppression or in limine
motions regarding Appellant’s phone call from the jail to his
girlfriend and admission of the BCI report on gunshot residue.
These allegations do not amount to ineffective assistance of
counsel. In reviewing the cross-examination, it appears counsel’s
trial strategy was to show the ill feelings between Appellant and
Washington. Counsel was attempting to elicit past confrontations
where Washington was at fault. It can be gleaned from the
sentencing transcript that Appellant alleges Washington threatened
his family and poisoned his dog. It seems Appellant’s counsel was
attempting to have this information disclosed to the jury through
Washington’s testimony. It has been explained that a reviewing
court will not second-guess decisions of counsel which can be
considered matters of trial strategy. State v. Smith, 17 Ohio St.3d
98, 477 N.E.2d 1128 (1985). Debatable strategic and tactical
decisions may not form the basis of a claim for ineffective
assistance of counsel even if, in hindsight, it looks as if a better
strategy was available. State v. Cook, 65 Ohio St.3d 516, 524, 605
12

N.E.2d 70 (1992). Moreover, debatable strategy very rarely
constitutes ineffective assistance of counsel. See State v.
Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).
As to the motions for suppression and in limine, Appellant claims
these motions would have possibly excluded the gunshot residue
report and the jail phone call. Counsel did not file suppression or in
limine motions; however, at trial, Appellant’s counsel objected to
the admission of the phone call to his girlfriend and the admission
of the BCI report on gunshot residue. The objections were
overruled; the trial court indicated the time to object was prior to
trial.
The “[f]ailure to file a suppression motion does not constitute per
se ineffective assistance of counsel.” (Internal quotations and
citations omitted.) State v. Madrigal, 87 Ohio St.3d 378, 389, 721
N.E.2d 52 (2000). “To establish ineffective assistance of counsel
for failure to file a motion to suppress, a defendant must prove that
there was a basis to suppress the evidence in question.” State v.
Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65.
“‘Where the record contains no evidence which would justify the
filing of a motion to suppress, the appellant has not met his burden
of proving that his attorney violated an essential duty by failing to
file the motion.’ ” State v. Logan, 8th Dist. No. 88472, 2007-Ohio2636, 2007 WL 1559305, ¶ 66, quoting State v. Gibson, 69 Ohio
App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). This same analysis
could apply to motions in limine.
Here, as aforementioned, counsel objected to the admission of both
the BCI report and the phone call. As to the BCI report, counsel
argued the full BCI file was not provided to him in discovery.
Regarding the phone call, although counsel stated he knew about
the phone call, counsel claimed it was not included in the
discovery packet. The state claims the phone call was in the
discovery packet, although it may not have been listed on the
inventory sheet. With both pieces of evidence, the trial court
indicated the proper time to bring this to the court’s attention was
prior to trial. Specifically for the BCI file, the court indicated if a
motion had been filed the court would have required BCI to deliver
the entire file. Likewise, the court would have ensured the
recording of the phone call had been disclosed to counsel. There is
nothing in the record to indicate any reason to suppress either piece
of evidence or for the trial court to grant an in limine motion.
Furthermore, Appellant does not cite this court to any authority to
demonstrate that any of the suggested motions would have had a
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reasonable probability of success. State v. Hillman, 10th Dist.,
2014-Ohio-5760, 26 N.E.3d 1236, ¶ 56. Therefore, there is no
indication counsel’s performance was deficient.
Even if counsel’s performance could be characterized as deficient,
it still must be shown that prejudice resulted. The gunshot residue
test and the phone call did provide some evidence that Appellant
was the shooter. However, that was not the only evidence. As
discussed above, there was testimony from Washington that
Appellant was the shooter; there was testimony that Appellant
drove a white Acura; there was testimony from other witnesses that
the shooter got into a white car and drove up an alley where
Appellant’s white Acura was found; and there was testimony
concerning footprints going from the white Acura towards Park
Street where Appellant lives. There was also testimony that
Appellant gave the police differing accounts of where he was
during the shooting, which goes to his credibility. For instance, at
one point he claimed to be with his child making tacos and then
changed his story to making spaghetti. Another time he said he was
at the store when the shooting occurred and he thought someone
was shooting at him, so he went home and then went outside with
his child. All of these facts, without consideration of the gunshot
residue test and the phone call, could lead to the conclusion
Appellant was the shooter. It is not clear that the outcome would
have been different and, therefore, Appellant was not prejudiced
by any alleged deficient performance.
In fact, counsel was given time to review the entire BCI file and to
hear the phone call prior to their admission. Counsel on cross
examination of the gunshot residue test, clearly brought to light
that the particles found on Appellant right hand were the least
amount of particles that would register for gunshot residue, even
though the test was taken less than an hour after the shooting.
Counsel was prepared and attacked the evidence in a manner best
available.
Consequently, there is no basis to find trial counsel’s performance
was deficient in this instance and/or that Appellant was prejudiced
by counsel’s performance. This assignment of error lacks merit.
State v. Rogers, 34 N.E.3d at 525-27.
“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

14

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 principals governing
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. 466 U.S. 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 and objective
standard of reasonableness.” Poole v. MacLaren, 547 Fed.Appx. 749, 754 (6th Cir. Dec. 5,
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 ‘strong [ ] presum[ption]’ that his counsel ‘rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.”

Poole, 547

Fed.Appx. at 754 (quoting Strickland, 466 U.S. at 687). “To avoid the warping effects of
hindsight, [courts must] ‘indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.’ ” Bigelow v. Haviland, 576 F.3d 284, 287
(6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
The United States Supreme Court has cautioned federal habeas courts to “guard against
the danger of equating unreasonableness under Strickland with unreasonableness under §
2254(d).” , 562 U.S. 86, 105 (2011). The Court observed that while “‘[s]urmounting Strickland
‘s high bar is never. . . easy.’. . . [e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is even more difficult. . . .” Id. (quoting Padilla v. Kentucky, 559
U.S. 356, ––––, 130 S.Ct. 1473, 1485 (2010) (and citing Strickland, 466 U.S. at 689). The Court
instructed that the standards created under Strickland and § 2254(d) are both “‘highly

15

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations omitted).
Thus, when a federal habeas court reviews a state court’s determination regarding an ineffective
assistance of counsel claim, “[t]he question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
Again, for the reasons already well addressed by the state appellate court, Petitioner has
failed to establish he is entitled to relief under the two-prong Strickland test.

Where the

petitioner alleges his counsel was ineffective for failing to file a motion to suppress, he must also
establish that the motion would have succeeded and that the verdict would have been different
absent the excludable evidence in order to demonstrate prejudice. See Rodriguez v. Warden,
Southern Ohio Correctional Facility, 940 F.Supp.2d 704, 713 (S.D. Ohio March 15, 2013)
(citing Henness v. Bagley, 644 F.3d 308, 317–18 (6th Cir. 2011) (quoting Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986)). Petitioner cannot do so here. Moreover, the strategic
decisions of counsel, “made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” English v. Romanowski, 602 F.3d 714, 726 (6th Cir.
2010) (citing Strickland, at 690)).
Claim two fails to provide a basis for relief.
Claim Three
In claim three, Petitioner asserts that the trial court violated Ohio law and the
Constitution when it permitted the admission of evidence regarding his prior conviction.
However, the alleged violation of state law or evidentiary rules does not provide a basis
for relief.

As a general matter, errors of state law, especially the improper admission of

evidence, do not support a writ of habeas corpus. See Estelle v. McGuire, 502 U.S. 62 (1991);

16

see also Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). To be entitled to habeas relief, a
petitioner must demonstrate that an evidentiary ruling violated more than a state rule of evidence
or procedure. In order to prevail, a petitioner must show that the evidentiary ruling was “so
egregious that it resulted in a denial of fundamental fairness.” Giles, 449 F.3d at 704 (citing
Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004)). Stated differently, “‘[e]rrors by a state court
in the admission of evidence are not cognizable in habeas proceedings unless they so
perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental
right to a fair trial.’ ” Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006) (citing Roe v. Baker,
316 F.3d 557, 567 (6th Cir. 2002)). A state court evidentiary ruling does not violate due process
unless it “offend[s] some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.’ ” Giles, 449 F.3d at 704 (citing Coleman v. Mitchell,
268 F.3d 417, 439 (6th Cir. 2001)). Such are not the circumstances here.
The state appellate court sustained Petitioner’s claim that the trial court erred in admitting
evidence of his prior conviction into evidence, reversing Petitioner’s conviction on having a
weapon while under a disability:
Appellant was convicted of having a weapon while under disability
pursuant to R.C. 2923.13(A)(3). For our purposes, that provision
provides that unless relieved from the disability, the person shall
not knowingly use a firearm if the person has previously been
convicted of any felony offense involving illegal sale or trafficking
in any drug. R.C. 2923.13(A)(3). In order to prove that Appellant
was under disability at the time of the offense, the state offered
into evidence a “True Copy” of a conviction for an “Aherice
Rahman” from New Jersey for possession of cocaine with intent to
distribute, a third-degree felony. State’s Exhibit 18. The state
offered evidence of Appellant’s aliases and contended that
“Aherice Rahman” is Appellant.
Appellant contends this evidence does not comply with R.C.
2945.75(B)(1), which states:

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(B)(1) Whenever in any case it is necessary to prove a prior
conviction, a certified copy of the entry of judgment in such prior
conviction together with evidence sufficient to identify the
defendant named in the entry as the offender in the case at bar, is
sufficient to prove such prior conviction.
R.C. 2945.75(B)(1).
Appellant contends the “True Copy” of the prior conviction from
New Jersey is not a certified copy, and thus, it fails to comply with
the mandates of R.C. 2945.75(B)(1). Furthermore, he contends the
record does not support the conclusion that he is “Aherice
Rahman,” the person who was convicted in New Jersey of felony
drug possession/trafficking. These arguments are sufficiency of the
evidence arguments.
Starting with the first issue of whether the judgment entry complies
with R.C. 2945.75(B)(1), the Ohio Supreme Court has elucidated
that “R.C. 2945.75(B)(1) permits the state to prove a prior
conviction by submitting a judgment entry of the conviction, but
the statute does not restrict the manner of proof to that method
alone.” State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 982
N.E.2d 626, ¶ 1. “For example, an offender may, and often does,
stipulate to a prior conviction to avoid the evidence being
presented before a jury.” Id. at ¶ 14. That said, if the State
“chooses to prove a prior conviction by using a judgment entry,
that entry must comply with Crim.R. 32(C).” (Emphasis omitted.)
Id. at ¶ 1. For a judgment entry to comply with Crim.R. 32(C), it
“must set forth (1) the fact of a conviction, (2) the sentence, (3) the
judge’s signature, and (4) the time stamp indicating the entry upon
the journal by the clerk.” Id. at ¶ 23.
Here, there is no stipulation. The issue is not whether the judgment
entry complies with Crim.R. 32(C), but rather does it qualify as a
certified copy. The judgment is stamped “TRUE COPY.” When a
judgment is certified in Ohio it is sworn to be a true copy of the
judgment. Although, this “True Copy” stamp is unlike a certified
copy stamp that occurs in Ohio courts, the state swore that this
copy is what it received from New Jersey when it asked for a
certified copy. Tr. 362.
We do not need to decide whether this “True Copy” complies with
the certified copy requirements in R.C. 2945.75(B)(1), because the
bigger issue in this case is evidence of identity. R.C. 2945.75(B)(1)
mandates that along with producing a certified copy of conviction
the state must provide sufficient evidence to identify the defendant
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named in the entry as the offender in the case at bar. Thus, the state
was required to prove that “Aherice Rahman,” who was convicted
of a felony drug offense in New Jersey, is Appellant Alterik
Rogers.
Ohio appellate courts have indicated identical names alone are
insufficient to establish the requisite connection between a
defendant and a previous conviction. State v. Lumpkin, 10th Dist.
No. 05AP–656, 2006-Ohio-1657, 2006 WL 832528, ¶ 16, citing
State v. O’Neil, 107 Ohio App.3d 557, 669 N.E.2d 95 (6th
Dist.1995) (“Names alone are not very reliable, and it appears that
the legislature recognized the problem in adopting R.C.
2945.75(B), which speaks of ‘sufficient evidence to identify the
defendant named in the entry.’ The legislative intent was to require
identity evidence, not merely name evidence.”) and State v.
Newton, 3d Dist. No. 2–83–20, 1984 WL 8033. However, when
the state presents documentary evidence of appellant’s prior
criminal history from a BCI report, a “slate sheet” printed from the
county jail, and a police identification photo of appellant that were
all authenticated by testimony it was deemed sufficient for
identification. Lumpkin at ¶ 18. Those exhibits demonstrated a
common name, race, sex, and date of birth with the prior
conviction. Id. at ¶ 19. Consequently, if there is more than one
identifier then it is sufficient to prove identity. State v. Greene, 6th
Dist. No. S–01–015, 2001 WL 1606831 (Dec. 14, 2001) (name,
social security number, and birthdate is sufficient to prove
identity); State v. Lewis, 4th Dist. No. 99CA2523, 2000 WL
33226193 (Dec. 15, 2000) (evidence is sufficient where state
introduced a prior judgment entry with appellant’s name, a
photograph that resembled appellant, and corresponding inmate
and offender numbers).
Here, attached to the New Jersey conviction for “Aherice Rahman”
is a search for aliases of “Altereq Rahmen.” This list does not
include the name “Aherice Rahman.” It does, however, include the
names “Brian MacNeil,” “Brian McNeil,” and “Alterick Rogers.”
The “Brian MacNeil” and “Brian McNeil” names are listed on
cases out of Jefferson County. One is on the municipal court cases
and the other is listed as an alias on the judgment of conviction in
the instant case. The alias “Alterick Rogers” name is spelled
differently than Appellant’s name Alterik Rogers. The list attached
to the New Jersey conviction for “Aherice Rahman” does not
indicate that “Atereq Rahmen” is an alias for “Aherice Rahman” or
that “Aherice Rahman” is an alias for Appellant Alterik Rogers.

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This list of aliases for “Altereq Rahmen” also contains multiple
social security numbers and dates of birth. One of the social
security numbers listed does match a social security number found
in the file for Appellant Alterik Rogers. The judgment entry for
“Aherice Rahman,” however, does not list a social security number
so it is difficult to discern that “Alterik Rogers” is an alias for
“Aherice Rahman,” or vice versa.
As to date of birth, the New Jersey conviction indicates that the
date of birth for “Aherice Rahman” is July 21, 1975. One
document in the file before us indicates that Appellant Alterik
Rogers’ birthdate is July 21, 1975. The alias list attached to that
conviction identifies two different birth dates for the alias
“Alterick Rogers,” July 21, 1975 and September 29, 1973. Thus,
Appellant Alterik Rogers, alias “Alterick Rogers,” and “Aherice
Rahman” do use/have the same birthdate.
The list of aliases also identifies tattoos. However, in this case,
there was no evidence presented concerning whether Appellant had
any tattoos. Furthermore, the New Jersey conviction does not
contain a photograph of “Aherice Rahman;” therefore, it could not
be compared to Appellant.
Considering the above, there was not sufficient evidence produced
to prove Appellant and “Aherice Rahman” (the name on the New
Jersey conviction) are the same person. The documents submitted
to the jury demonstrate that “Altereq Rahmen” is an alias for
“Brian MacNeil,” “Brian McNeil,” and “Alterick Rogers.” Yet, it
does not indicate that “Aherice Rahman” is an alias for “Brian
MacNeil,” “Brian McNeil” or “Alterik Rogers.” Likewise, there is
no social security number for “Aherice Rahman” that could link
that name to Appellant. Although one birthdate listed for alias
“Alterick Rogers” may be the same birth date listed for Appellant
Alterik Rogers and “Aherice Rahman”, this alone is not sufficient
to prove identity.
It is acknowledged that Appellant admitted at the sentencing
hearing that he was incarcerated in New Jersey three times for drug
offenses. 6/30/14 Sentencing Tr. 11. For purposes of showing
sufficient evidence at trial of disability, i.e. Appellant was
previously convicted of a felony drug offense, that information is
inconsequential. We can only consider the evidence that was
submitted to the jury. *530 Appellant did not take the stand and
was not asked about his prior convictions. The state was required
to prove disability and chose to do so through a “True Copy” of
Appellant’s alleged New Jersey conviction. However, as stated
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above, the state did not provide sufficient evidence that “Aherice
Rahman” (the name on the New Jersey conviction) and Appellant
Alterik Rogers are the same person.
This assignment of error has merit. The conviction and sentence
for having a weapon while under disability is reversed and vacated
for lack of sufficient identity evidence.
State v. Rogers, 34 N.E.3d at 527-530.
Moreover, “even if prior bad acts evidence was improperly admitted by the trial court,
there is no clearly established Supreme Court precedent that establishes that the admission of
such propensity evidence violates the Due Process Clause” and such claim therefore does not
warrant relief. Werber v. Milligan, No. 1:11-cv-400, 2012 WL 1458103, at *20 (N.D. Ohio
March 23, 2012) (citing Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (other citations
omitted).
Claim three fails to provide a basis for relief.
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).

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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/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
Chief United States Magistrate Judge

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