Jones v. Warden, Southern Ohio Correctional Facility

Filing 20

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Delshjuan Jones. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 1/24/2018. Signed by Magistrate Judge Chelsey M. Vascura on 1/10/2018. (kpt)(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
DELSHJUAN JONES,
a.k.a. Delshaun Jones,

CASE NO. 2:17-CV-192
JUDGE GEORGE C. SMITH
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
WARDEN, SOUTHERN OHIO
CORRECTIONAL FACILITY,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this 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.
I. Facts and Procedural History
The Franklin County (Ohio) Court of Common Pleas summarized the facts of the case as
follows:
On March 8, 2014 an incident involving a stabbing occurred at
Schrock Tavern. The victim Samuel Lacy, a security guard at the
Schrock Tavern claimed that he was stabbed by a person who he
had recognized from the tavern before and knew as a rapper.
Ultimately, the police were able to get the defendant’s name. Det.
Brian Wildman created a six pack photo array that included the
defendant. After he interviewed the defendant at the hospital he
had Officer Gregory Potter serve as the blind administrator for the
array. This interview was audio taped. . . . For the identification
Officer Potter followed the procedure he was trained as the blind
administrator. Mr. Lacy identified photo number four which was
the defendant, indicating I think that’s him.

Thereafter, the defendant was arrested and taken to Columbus
Police Headquarters where he was interrogated. In reviewing the
rights waiver with the defendant, he admitted to consuming alcohol
at 6:30 pm the night before and taking Percocet, 15 mg. between
11:30 pm to 12:00 am. The waiver was signed at 5:54 am. After
the defendant had reviewed the rights waiver with the officer he
indicated he understood his rights and signed the acknowledgment.
He then talked with the officer providing some incriminating
statements.
Entry (Doc. 6-1, PAGEID ##123-124). Petitioner was indicted by the January 10, 2014, term of
the Franklin County grand jury on one count of felonious assault in violation of O.R.C.
§ 2903.11. (Id. at PAGEID #46). After the trial court’s denial of Petitioner’s motions to
suppress evidence, Petitioner entered a no contest plea. (Id. at PAGEID #150). On November
21, 2014, the trial court imposed a sentence of seven years of incarceration plus three years of
post-release control. (Id. at PAGEID ##170-171). Represented by new counsel, Petitioner
pursued a timely appeal. He raised the following assignments of error:

[I.] The trial court erred when it overruled defendant's Motion to
Suppress Identification.
[II.] The trial court erred when it overruled the defendant's Motion
to Suppress Statements.
[III.] The trial court abused its discretion when it submitted a
judgment entry that did not accurately reflect what occurred at the
plea hearing.

State v. Jones, No. 14AP-1050, 2015 WL 7902800, at *1 (Ohio App. 10th Dist. Dec. 3, 2015).
On December 3, 2015, the appellate court sustained Petitioner’s third assignment of error, as the
parties agreed “that the judgment entry signed by the trial court judge is incorrect when it states
that Delshjaun Jones was convicted following a guilty plea” and remanded the case to the trial
court to journalize a nunc pro tunc entry reflecting that Petitioner was found guilty following a

2

plea of “no contest.” Id. The appellate court otherwise affirmed the judgment of the trial court.
Id. On May 4, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State
v. Jones, 145 Ohio St.3d 1458 (2016). On December 11, 2015, the trial court issued the
Amended Judgment Entry. (Id. at PAGEID #316).
On March 6, 2017, Petitioner filed this pro se § 2254 Petition.1 He asserts that he was
denied a fair trial due to admission of identification testimony obtained through the use of an
unduly suggestive photo array conducted in violation of state law (claim one); and that his
statements were admitted in violation of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (claim
two). Respondent contends that Petitioner’s claims lack merit.

II. Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of state-court
determinations. The United State Supreme Court described AEDPA as “a formidable barrier to
federal habeas relief for prisoners whose claims have been adjudicated in state court” and
emphasized that courts must not “lightly conclude that a State's criminal justice system has
experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v.
Titlow, 134 S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 103 (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).
The factual findings of the state appellate court are presumed to be correct. Section
2254(e)(1) provides as follows:
1

Petitioner indicates that, on February 24, 2017, he submitted the Petition to prison officials for mailing. Petition
(ECF No. 1, PAGEID #11).

3

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.

“Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir.)
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub. nom Coley v.
Robinson, 134 S. Ct. 513 (2013); 28 U.S.C. § 2254(d)(1); 28 U.S.C. § 2254(d)(2) (a petitioner
must show that the state court relied on an “unreasonable determination of the facts in light of
the evidence presented in the State court proceeding”). The United States Court of Appeals for
the Sixth Circuit explained these standards as follows:

A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405[] (2000). A
state court's decision is an “unreasonable application” under 28
U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule
from [the Supreme] Court's cases but unreasonably applies it to the
facts of the particular ... case” or either unreasonably extends or
unreasonably refuses to extend a legal principle from Supreme
Court precedent to a new context. Id. at 407[].

Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).

4

“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable, . . . [t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,
(2003) (internal quotation marks omitted) (citing Lockyer v. Andrade, 538 U.S. 63, 76 (2003);
Williams, 529. U.S. at 409); see also Harrington, 562 U.S. at 778 (“[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 claims 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), cert. denied sub. nom. Neal v. Epps, 537 U.S. 1104 (2003)); see also Nicely v. Mills, 521
F. App’x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that was “not
expressly considered by the state court in its opinion” to evaluate the reasonableness of state
court's decision). Relatedly, in evaluating the reasonableness of a state court's ultimate legal
conclusion under § 2254(d)(1), a court must review the state court's decision based solely on the
record that was before it at the time it rendered its decision. Pinholster, 563 U.S. at 181. Put
simply, “review under § 2254(d)(1) focuses on what a state court knew and did.” Id. at 182.

5

A. Claim One
In claim one, Petitioner asserts that police failed to follow the procedures required under
state law when obtaining a photo identification of him from the alleged victim Samuel Lacy,
resulting in an unduly suggestive identification. According to Petitioner, Lacy’s identification of
him was unreliable, as Lacy had little to no opportunity to view his assailant at the time of the
offense, paid limited attention, provided a vague description of the perpetrator to police, and was
uncertain of his identification of Petitioner. The state appellate court rejected this claim as
follows:
The trial court . . . overruled a motion to suppress identification
and a motion to suppress statements. The motions were overruled
following an evidentiary hearing, which revealed that someone
stabbed or slashed Samuel Lacy, seriously injuring Lacy's face.
Lacy felt he knew the identity of his assailant, a young man called
“Deli” who came into the Schrock Tavern where Lacy worked.
Columbus police officers who investigated the assault concluded
that the assailant was Delshjaun Jones and prepared a photo array.
***
The [] issue is whether the identification of Jones as the assailant
by Samuel Lacy should have been suppressed as evidence. The CD
of the interview of Lacy by police detectives and of the
presentation of the photo array to Lacy for him to identify his
assailant is consistent with the trial court's overruling of the motion
to suppress. Lacy was clearly certain that he knew his assailant
from the assailant's frequent visits to the Schrock Tavern. Lacy
recognized the nickname “Deli” as applying to his assailant.
Lacy identified two photos of the six in the array as pertinent to the
investigation. The photo in the slot marked “6” he identified as
being a friend of the assailant. The photo in the slot number “4” he
identified as being a photo of the assailant. The procedure was not
suggestive and therefore has [sic] not the basis for suppressing the
identification testimony had this been a trial.
The first assignment of error is overruled.

6

State v. Jones, 2015 WL 7902800, at *1-2.
To the extent that Petitioner raises a claim regarding the alleged violation of state law, his
claim fails to provide a basis for relief. Federal courts can grant habeas corpus relief only if the
petitioner is confined in violation of the United States Constitution. 28 U.S.C. § 2254(a); e.g.,
Wilson v. Corcoran, 562 U.S. 1, 5 (2010). “[I]t is not the province of a federal habeas court to
reexamine state court determinations on state law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).
However, 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” violates a criminal defendant's right to due process. Thigpen v. Cory, 804
F.2d 893, 895 (6th Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). “It
is the likelihood of misidentification which violates a defendant's right to due process.” Neil v.
Biggers, 409 U.S. 188, 198 (1972). The Court first must determine whether the pre-trial
identification procedure employed was unduly suggestive. Ledbetter v. Edwards, 35 F.3d 1062,
1070–71 (6th Cir. 1994), cert. denied, 515 U.S. 1145 (1995). If so, the Court must then consider
the totality of the circumstances in order to determine whether the identification is nevertheless
reliable. Id. at 1070 (citing Neil v. Biggers, 409 U.S. at 199–200; United States v. Hill, 967 F.2d
226, 230 (6th Cir.), cert. denied, 506 U.S. 964 (1992); Thigpen, 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.
7

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).
Here, Officer Brian Wildman testified that, on March 8, 2014, he was contacted about
a stabbing at the Schrock Tavern and given Petitioner’s name as the suspect. He assembled a
photo lineup which included Petitioner’s photograph, and went to the hospital in order to
interview Samuel Lacy, the alleged victim. Transcript of Suppression Hearing (Doc. 6-2,
PAGEID # 338). Wildman gave the photo array to a “blind administrator,” i.e., an officer who
did not know the identification of the suspect. (Id. at PAGEID #340). Lacy told police he had
had prior dealings with his assailant. “It was clear he had dealt with the person before.” Lacy
did not know the name of his attacker, but was clearly familiar with the man. (Id. at PAGEID
#341). Lacy described him as a light skinned black male, approximately six feet two inches tall,
with large lips and “he mentioned something about his eyebrows.” (Id. at PAGEID #342).
Wildman recorded the interview with Lacy, and it was played during the hearing on the motion
to suppress evidence. (Id. at PAGEID #345). The recording indicated that Lacy was working
security at the Schrock Tavern on the night he was attacked.

And there was a group of females come in. I patted them down . . .
.
***
Searched the purses. So there was a pause for a second. Then
nobody come in and there was another group of dudes coming in
that came in and everything. Dude had a knife on him . . . . I
patted him down . . . . okay, he had it on this side. He had a knife
on this side. He had a can of mace on this side in his jacket. I said
you have to go back to the car, take it out to your car. He said, all
right.
And then like three or four other people come in, I patted them
down . . . . And then there was a quick pause. Because I wasn’t

8

standing that close to the door and I was five feet away from [the
front] door . . . .
And so when he came in, he just – (indicating) – hit me. I’m like,
oh, this mother fucker.
***
I had my back completely turned and he hit me. I don’t know if it
was a box cutter or a knife.

(Id. at PAGEID ##348-349). Lacy recognized his assailant as a rapper who had frequented the
club in the past. (Id.). The man usually came to the club with “his boys,” whom Lacy also
recognized. (Id.). Lacy recognized the nickname, “Deli,” but said the man also went by another
name. (Id. at PAGEID #349). Lacy described him as a black male with light skin, a couple
inches taller than himself. Lacy could recognize him if provided with a photograph. (Id. at
PAGEID #350). “Uh-huh. Can’t miss him. He got big lips and – (inaudible) – eyebrows. –
(inaudible)—he got some tattoos and stuff. You know what I mean? You can’t miss him.”
(Id.). Officer Wildman was not present when Lacy identified Petitioner from the photo array.
(Id. at PAGEID ##400, 410).
Officer Gregory Potter also responded to the Schrock Tavern and followed Lacy to
Riverside Hospital. (Id. at PAGEID #416). Potter showed the photo array provided by Officer
Wildman to Lacy and asked Lacy if he could identify the person who had assaulted him at the
bar. (Id. at PAGEID #417). Potter did not know, at that time, the identity of the suspect. (Id. at
PAGEID ##417-418). An audiotape was made of the identification procedure, which was played
during the hearing on the motion to suppress. It indicates that Potter instructed Lacy as follows:

The photo array you’re about to view consists of six photographs
in no particular order of importance. The subject of his
investigation may or may not be included in the photographs. I do
not know who the subject of this investigation is. Look carefully

9

at the photographs of all six people then advise me whether or not
you recognize anyone. You are not required to select a photo.

(Id. at PAGEID #421). Lacy identified photograph number six as “one of the dudes’s he’s
connected with” and photograph number four, or Petitioner’s photograph, as the person who cut
him. (Id. at PAGEID ##421-422). Lacy stated, “I want to be sure. I don’t want to mess up.
Make sure I get the right person. That’s got to be him then. Because I remember – I seen him
before throwing him out the club.” (Id. at PAGEID #422).

DETECTIVE: So number six you’ve seen before.
MR. LACY:2 Yeah. I know – I’ve seen him before, but – I think
that’s him. It happened so fast, bro.
THE DETECTIVE: Number four is the one from –
MR. LACY: From this, yeah.
THE DETECTIVE:3 Did that to you? Cut you?
THE DEFENDANT: Yes. Uh-huh.
THE COURT: Okay.

(Id.). Potter denied making any suggestive remarks regarding the identification of the suspect.
(Id. at PAGEID ##422-423). The photo array also was entered into evidence and has been made
a part of the record before this Court. (See Id. at PAGEID #322; ECF No. 19).
Petitioner argues that the state appellate court’s decision denying his claim constitutes an
unreasonable determination of the facts in light of the evidence presented because police
improperly provided Lacy with Petitioner’s name and put his name beneath his photograph on

2

The transcript refers to Lacy as “the defendant” at this point; however, this appears to be a typographical error.
The transcript refers to the detective as “the court” at this point. Again, however, this appears to be a
typographical error.
3

10

the photo array during the time that Lacy made his identification. Traverse (ECF No. 10, at
PAGEID #536). He further contends that Lacy identified another person prior to identifying
Petitioner as the perpetrator of the offense. (Id. at PAGEID #539). However, the record does
not support these allegations. The record does not indicate that the photo array was unduly
suggestive, and it contains no evidence of any improper or suggestive conduct on the part of the
police. Likewise, the record does not support Petitioner’s claim that police put Petitioner’s name
underneath his photograph when they asked Lacy to make an identification. Petitioner has failed
to rebut the presumption of correctness afforded to the state court’s factual findings in this
regard. Lacy recognized Petitioner, knew him from prior contacts, and made his identification
on this basis. This Court has reviewed the photographic array used by police. It does not
indicate that police identified Petitioner’s photograph and does not appear unduly suggestive in
any other respect.
Claim one is without merit.
B. Claim Two
In claim two, Petitioner asserts that the trial court improperly admitted his statements to
police as obtained in violation Miranda. Petitioner states that he was intoxicated and under the
influence of alcohol and Percocet when police interviewed him and therefore did not knowingly,
intelligently, or voluntarily waive his Miranda rights. Petitioner maintains that he twice
requested to terminate the interview, but the police improperly failed to honor his requests and
illegally continued to question him. Petitioner argues that the videotape of his interview with
police will support his claim that the appellate court unreasonably applied federal law when it
rejected his claim, as it shows that his speech was slurred, he had difficulty staying awake, and
that he told police he felt “pretty faded” at the time.

11

The state appellate court denied Petitioner’s claim, reasoning in relevant part as follows:
Police also found and interviewed Jones. Jones executed a standard
rights waiver. Jones indicated that he had taken Percocet and
downed about a half liter of vodka prior to being asked to waive
his various rights. Jones indicated that he understood his rights and
was willing to speak to police without the benefit of counsel and
without invoking his right to remain silent before starting the
interview. However, part way through the interview, Jones
indicated a reticence to talk. The officer questioning Jones
continued asking questions anyway.
A different police officer was involved in transporting Jones from
the after hours place where Jones was arrested to police
headquarters for questioning. This officer, Officer Mrsnik, testified
that while on the way to police headquarters and in reference to no
questions, Jones said “All this for a fight,” or words to that effect.4
The words uttered by Jones during his time in the cruiser while
being transported were clearly uttered voluntarily and therefore
were admissible against him had the case proceeded to a trial. The
trial court judge was correct to overrule the motion to suppress
statements with respect to those words.
The admissibility of all or part of the interview of Jones at police
headquarters is more problematic, especially the parts of the
interview which followed what could be construed as an attempt
by Jones to invoke his right to remain silent. That interview was
recorded in its entirety and the recording is in the record before us
on appeal. At the beginning of the CD, Jones indicates that he had
had a liter or a half liter of vodka within the last 12 to 24 hours. He
also acknowledges having one or more 15mg tablets of Percocet.
Yet, he speaks coherently, if relatively slowly, throughout the
interview. Given the demeanor of Jones displayed in the CD the
trial court could reasonably conclude that Jones began the
interview with a knowing, intelligent and voluntary waiver of his
Fifth Amendment rights.
The rights waiver reviewed with Jones indicated that Jones could
stop answering questions at any time. This leads to the second
inquiry, namely whether or not Jones invoked his right to stop
answering questions part way through the interview.
Once Jones was informed that he had already been charged with
felonious assault and that he was going to jail, his demeanor
4

Petitioner does not challenge the admissibility of his statements to Officer Mrsnik.

12

changed. He acknowledged that he had had a fight with his brother
earlier in the evening, but became reticent to talk about his
encounter with Samuel Lacy. Still, he acknowledged being at
Schrock Tavern and having an encounter with security personnel at
the tavern.
Being reticent to talk to police is not the same as invoking the right
to remain silent. Jones seemed to want to stop the interview but
never stopped answering questions. His desire to end the interview
was never clearly communicated such that the trial court could find
that Jones had invoked his right to remain silent. We cannot say
the trial court erred in allowing the entire interview to be construed
as being admissible had there been a trial.
The second assignment of error regarding the suppression of the
statements made at police headquarters is overruled and during the
transporting is overruled.

State v. Jones, 2015 WL 7902800, at *1-2.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself.” The privilege against self-incrimination prohibits the
government from using any statement against a criminal defendant “stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966).
“[B]y custodial interrogation, we mean questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” Id. A person being questioned in a custodial interrogation must be warned
“that he has the right to remain silent, that any statement he does make may be used as evidence
against him, and that he has the right to the presence of an attorney, either retained or appointed.”
Id. A suspect subject to custodial interrogation may waive his Miranda rights, “provided the
waiver is made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. Waiver
depends on the particular facts and circumstances of the case, including the background,
13

experience, and conduct of the accused. See Bush v. Warden, S. Ohio Corr. Facility, 573 F.
App’x 503, 510 (6th Cir. 2014) (citing Edwards v. Arizona, 451 U.S. 477, 483 (1981).

If, however, he indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before speaking
there can be no questioning. Likewise, if the individual is alone
and indicates in any manner that he does not wish to be
interrogated, the police may not question him. The mere fact that
he may have answered some questions or volunteered some
statements on his own does not deprive him of the right to refrain
from answering any further inquiries until he has consulted with an
attorney and thereafter consents to be questioned.

Miranda, 384 U.S. at 444–45. “[T]he suspect must unambiguously request counsel.” Davis v.
United States, 512 U.S. 452, 459 (1994).

Although a suspect need not “speak with the discrimination of an
Oxford don,” post, at 2364 (SOUTER, J., concurring in judgment),
he must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney. If the
statement fails to meet the requisite level of clarity, Edwards does
not require that the officers stop questioning the suspect.

Id. Where a suspect’s request to cease questioning is “ambiguous or equivocal,” cessation of
questioning is not required. See Tolliver v. Sheets, 530 F. Supp. 2d 957, 994 (S.D. Ohio 2008)
(citing Calhoun v. McKee, No. 05-74614, 2007 WL 1452911 (E.D. Mich May 15, 2007)
(quoting Davis v. United States, 512 U.S. 452, 459 (1994))). The defendant must clearly and
unequivocally assert his right to silence before police are required to stop questioning him.
United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir. 2000). Additionally, Miranda does not
prohibit the admission of voluntary statements made while an accused is in police custody in the
absence of express police questioning or its equivalent. United States v. Murphy, 107 F.3d 1199,

14

1204 (6th Cir.1997) (“where a defendant makes a voluntary statement without being questioned
or pressured by an interrogator, the statements are admissible despite the absence of Miranda
warnings”). The United States Court of Appeals for the Sixth Circuit has held that, absent
coercion, a waiver will be deemed voluntary even where the defendant was under the influence
of an intoxicating medication or had been drinking heavily at the time. United States v. Miller,
562 F. App’x 272, 290 (6th Cir.) (citing United States v. Dunn, 269 F. App’x 567, 572 (6th Cir.
2008)), cert. denied sub. nom. Dorsey v. United States, 135 S. Ct. 184 (2014).

Other circuits, in likewise upholding Miranda waivers, have done
so despite drug impairment. See, e.g., United States v. Burson, 531
F.3d 1254, 1258 (10th Cir. 2008) (“[D]efendant must be impaired
to a substantial degree to overcome his ability to knowingly and
intelligently waive his privilege against self-incrimination.”);
United States v. Cristobal, 293 F.3d 134, 143 (4th Cir. 2002)
(“Medical records indicating that a suspect had been given
narcotics, with no supporting evidence as to the effects of those
narcotics (on the individual or even in general) are not sufficient to
render a waiver of Miranda rights unknowing or unintelligent.”);
United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990)
(“Intoxication and fatigue do not automatically render a confession
involuntary; rather, the test is whether these mental impairments
caused the defendant's will to be overborne.”) * * * [T]he Tenth
Circuit held that a hospitalized defendant recovering from gunshot
wounds and laboring under the influence of a painkiller, but who
nonetheless was “alert and responsive” during questioning,
knowingly and intelligently waived his rights. United States v.
Morris, 287 F.3d 985, 989 (10th Cir. 2002).

United States v. Montgomery, 621 F.3d 568, 573-74 (6th Cir. 2010). In cases involving Miranda
waivers by intoxicated defendants, “courts examine the ‘totality of the circumstances,’ including
the suspect’s ‘age, experience, education, background, and intelligence, and . . . whether he has
the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and
the consequences of waiving those rights.’” Id. at 573 (quoting Fare v. Michael C., 442 U.S.

15

707, 725 (1979)). A statement obtained by police in violation of Miranda is subject to the
harmless error doctrine. Tolliver, 530 F. Supp. 2d at 994 (citing Arizona v. Fulminante, 499 U.S.
279, 310 (1991)).
Officer Brian Wildman interviewed Petitioner at police headquarters at approximately
5:52 a.m.. Transcript (ECF No. 6-2, at PAGEID ##342, 389). He did not notice anything
unusual about Petitioner’s behavior or demeanor at that time. Id.

He appeared . . . fine to me. We went over the questions at the
bottom of the constitutional rights waiver form. He indicated he
had been drinking, but he did not appear intoxicated to me. I
thought he was lucid. . . . I couldn’t smell the odor of alcohol[.]

Id. The videotape of that interview was played during the hearing on the motion to suppress
evidence. Petitioner indicated that he had been advised of his Miranda rights many times
previously. (Id. at PAGEID #358). He had a high school education. (Id.) He had consumed a
half liter of vodka and stated, “I am intoxicated right now.” (Id. at PAGEID #359). “Like, I’m,
I’m pretty faded, you know, this, this’ll wake you up a little bit, you know; but I’m there and I
ain’t about to throw up or pass out or nothing.” (Id. at PAGEID #360). He said he understood
all the questions. (Id.). He had taken 15 mg. of Percocet between 11:30 and 12:00. (Id. at
PAGEID ##360-361). Wildman advised him of his Miranda rights. Petitioner repeatedly
indicated that he understood. (Id. at PAGEID ##361-362). Before making any statements, he
asked to be advised of the charges against him. Wildman informed him that he had been charged
with felonious assault. (Id. at PAGEID #363). Petitioner stated that he had gotten into a fight
with his brother earlier in the evening. (Id. at PAGEID #364).

16

THE DETECTIVE: Every officer that’s brought you up here
keeps saying you admit you got into an altercation with some
bouncers and that was it.
THE DEFENDANT: Yeah. I’m always fighting, you know, like,
I’m a fighter, like. You know what I’m saying? Like, I told them
that, yeah, it’s like at the club I was at, I got into this whole thing
with – (inaudible) – some dog like that.

(Id. at PAGEID #365). He had been at the Schrock Tavern and acknowledged that he had had
problems with security there in the past. (Id. at PAGEID #366).

I don’t know, man. I don’t even really know if I want to talk. I’m
already going to jail, like. Ain’t nothing I’m going to say right
now to get me out of here. They didn’t even tell me that I was
charged with nothing or anything. They just say I had to come in
here and talk to you and now you telling me I’m charged.
***
THE DEFENDANT: And I’m already going to jail, like. So I
really –
THE DETECTIVE: I’m trying to get your explanation for –
THE DEFENDANT: (Inaudible) – I understand.
THE DETECTIVE: * * * I’m just trying to get your explanation
for what occurred . . . .

(Id. at PAGEID #367). Petitioner then indicated that a couple of men had grabbed him and told
him that he could not go into the bar. (Id. at PAGEID ##367-368). He turned around and
swung. (Id. at PAGEID #368). He denied using a knife. “I don’t understand why this is
felonious assault. I break his jaw?” (Id. at PAGEID #369).

THE DETECTIFVE: You cut him with a knife.
THE DEFENDANT: I ain’t cut him with no knife.

17

THE DETECTIVE: You cut him with a knife. It’s right on tape, dude.
THE DEFENDANT: I ain’t have no knife.
***
THE DETECTIVE: He’s split open. You want me to go get a picture of it?
THE DEFENDANT: Yeah. I didn’t have no knife, though.
Honestly. I have no knife. It may have been my ring. I ain’t have
no knife. I don’t need to use no knife. I fight all the time. Look at
my hands, man, beat up. My knuckles swollen and everything,
man, from punching on dude and stuff, man.
THE DETECTIVE: You’re just saying you threw a punch and cut
him?
THE DEFENDANT: * * * Yeah. I didn’t cut him. I ain’t have
no knife.

(Id. at PAGEID ##369-370). Petitioner admitted throwing a couple of punches, but repeatedly
denied using a knife. (Id. at PAGEID ## 371, 373, 385, 387).
This Court has reviewed the entire record, including the videotape of the interview with
police. Petitioner appears to be lucid and coherent and to understand what is happening. He
indicates that he understands. His speech is not slurred. He asks appropriate questions.
Although he mentions that he has no reason to speak with police, because they have already
decided to file charges against him, he never requests counsel or indicates that he wishes to cease
the police interview. To the contrary, he continues responding to questions and asking questions
of his own. As discussed, he denies use of a knife repeatedly. The police did not engage in
coercive tactics. The totality of the circumstances supports the state court’s conclusion that
Petitioner knowingly, intelligently, and voluntarily waived his Miranda rights and agreed to
speak with police. Moreover, the record does not indicate that he ever clearly and unequivocally

18

indicated that he no longer wished to speak to police or asserted his right to remain silent. In
view of this record, Petitioner has failed to establish that relief is warranted.
Claim two is without merit.

III. Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

IV. 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).

19

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/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

20