Lytle v. Buchanan

Filing 12

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and th e Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/9/2018. Signed by Magistrate Judge Michael R. Merz on 7/25/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ROBERT LYTLE, JR.,
Petitioner,

:

- vs -

Case No. 2:17-cv-1146
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

TIM BUCHANAN,1 Warden,
Noble Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action under 28 U.S.C. § 2254 was brought by Petitioner Robert Lytle
with the assistance of counsel and challenges his convictions for robbery in the Franklin County
Court of Common Pleas. The case is ripe for decision on the Petition (ECF No. 1), the State Court
Record (ECF No. 4), the Return of Writ (ECF No. 5), and Petitioner’s Reply (ECF No. 10). The
Magistrate Judge reference was transferred to the undersigned to assist in balancing the Magistrate
Judge workload in the District.

Procedural History

Respondent quotes the background facts of the case and some of the procedural history
from the direct appeal decision of the Ohio Tenth District Court of Appeals:

1

The caption is amended to reflect that Tim Buchanan is the Warden at Noble Correctional Institution and properly
named as Respondent in this case.

1

I. FACTS AND PROCEDURAL HISTORY
[*P2] Several bar robberies on the south side of Columbus
committed within a two-day span in January 2014 gave rise to
appellant's criminal indictment in two cases. In the first case, related
to the Old Landmark Bar, appellant was indicted on January 23,
2014 for four counts of robbery pursuant to R.C. 2911.02. Under
Count 1, the indictment alleged appellant, "in attempting or
committing a theft offense in respect to Old Landmark Bar, or in
fleeing immediately after the attempt or offense, did recklessly
inflict, attempt to inflict, or threaten to inflict physical harm on
another, to wit: Susan Puckett" on or about January 16, 2014.
(Emphasis added.) (Old Landmark Bar Case Indictment at 1.) Count
2 alleged the same conduct, except "in respect to Susan Puckett."
(Old Landmark Bar Case Indictment at 1.) Counts 3 and 4, alleging
robbery involving the use or threatened immediate use of force
against another, were nolled at the request of plaintiff-appellee,
State of Ohio.
[*P3] In the second case, related to TK Sports Bar, appellant was
indicted on April 1, 2014 for four counts of kidnapping, pursuant to
R.C. 2905.01, and two counts of robbery, pursuant to R.C. 2911.02.
In pertinent part, Count 5 of the indictment alleged appellant, "in
attempting or committing a theft offense in respect to TK Sports Bar,
or in fleeing immediately after the attempt or offense, did recklessly
inflict, attempt to inflict, or threaten to inflict physical harm on
another, to wit: Sarah Carter" on or about January 14, 2014. (TK
Sports Bar Case Indictment at 2-3.) The remaining counts were
nolled at the request of appellee.
[*P4] Appellant pled not guilty to the charges, and the cause came
to trial on July 20, 2015. At the outset of the trial, the judge overruled
appellant's previously filed motion to suppress photo identifications
in the TK Sports Bar case due to appellant's allegation of procedure
violations under R.C. 2933.83. The judge likewise overruled
appellant's motion to sever trial of the separate cases and
emphasized he would specifically instruct the jury regarding
considering each case separately.
[*P5] The trial commenced, and after opening statements, the judge
addressed the separate nature of the cases with the jury stating:
[A]s a matter of law * * * these are separate incidents. You
are to consider and analyze each separately. Sometimes we
have cases tried apart, but other times we allow them to be
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together. But we always worry that a jury will say, "Well,
he was involved in one, he must be involved in the other."
You've got to analyze each on their own facts. They're
allowed to make arguments about whether they're similar,
but I did caution you that you have to decide each case
separately.
(Tr. at 46-47.)
[*P6] The trial resumed, and appellee produced the following
relevant evidence in its case-in-chief.
[*P7] Stephanie Christman testified that around 10:30 p.m. on
Thursday, January 16, 2014, she was at the Old Landmark Bar
watching a basketball game with her husband, Steve. According to
Stephanie, a man entered the bar through the back door dressed in a
grey sweatshirt with the hood up and grey sweatpants and asked the
bartender for the location of the restroom. A friend of the
Christmans named Bobby Gray was already in the restroom arguing
on the phone with his girlfriend, and Stephanie asked her husband
to check on him. When her husband returned, the man came out of
the restroom wearing a ski mask and holding a gun. Stephanie
dropped to the ground behind the bar, while her husband remained
seated. Stephanie heard the man say to Susan Puckett, the bartender,
"[g]ive me all of the money, or I'm going to kill you, bitch," then ask
Puckett for her car keys and what color her car was. (Tr. at 52.) She
heard scuffling, and when she got up, she saw three men restraining
the man with the ski mask on the ground. Puckett kicked the gun
and called 911.
[*P8] Stephanie testified that she saw the man's face after police
arrived and removed the ski mask. She identified appellant in the
courtroom as the man who entered the restroom, exited the restroom
000.0in a ski mask, and was arrested by police that evening.
Stephanie recalled that the lighting in the back of the bar was "a little
dim" but testified that she did not have problems seeing the man or
the gun, which had a laser light. (Tr. at 53.) Stephanie later learned
from police that the gun was a fake. Stephanie agreed she had
consumed alcohol that evening, specifically Bud Light, and did not
remember how many she consumed but said she did not feel
inebriated and noted she had to work the next day. On crossexamination, Stephanie agreed she could have had up to eight Bud
Lights over the course of the three hours she was at the bar watching
the game. Stephanie additionally agreed that in the written statement
she made to police after the incident, she did not indicate that the
man wore a ski mask or that he took Puckett's car keys.
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[*P9] Stephanie's husband, Steve Christman, testified that he
watched a basketball game at the Old Landmark Bar on the evening
of January 16, 2014 with his wife, Gray, a person named Doug
Purcell, a few other people, and bartender Susie Puckett. At his
wife's prompting, Steve checked on Bobby in the bathroom, and
observed someone else at the urinal with his hood up. He returned
and reported everything was okay, but then saw the man come out
of the bathroom with a ski mask on and point the laser of a gun at
Puckett's chest while she was at the cash register. According to
Steve, who said he remained sitting at his bar chair, Puckett gave the
man with the ski mask the money from the cash register after the
man threatened to kill her. Steve then heard the man in the mask ask
Puckett for her car keys and saw Puckett remove a key from her key
ring and give him the key. Right before the man exited the back
door, Purcell hit the man with a pool stick, possibly dislodging the
gun, and Steve and Purcell took the man to the floor, where they
held him until police arrived.
[*P10] Although Steve indicated that the lighting in the bar was
dim, he did not have trouble seeing individuals in the bar. Steve
further testified that he was able to view the face of the man when
police stood him up and removed his ski mask and identified
appellant in the courtroom as that man. Steve agreed he had
consumed alcohol that evening but testified that his alcohol
consumption did not affect what he saw or heard that night.
[*P11] On cross-examination, Steve agreed that he did not know if
anyone else was in the restroom along with his friend Bobby and the
man with his hood up but said the restroom only had room for two
people. He also confirmed that in his written statement to police he
did not write that the man in the ski mask threatened to kill Puckett.
[*P12] Doug Purcell testified to being at the Old Landmark Bar on
the evening of February 16, 2014. While he was at the bar, he saw a
red dot on Puckett's back and observed a man with a gun wearing a
"hoodie" and a mask. (Tr. at 125.) According to Purcell, the man
said "[f]ucking bitch, give me the money" and "[g]ive me your
money, or I'll kill you," and then asked for Puckett's car keys and
where her car was located. (Tr. at 122.) Puckett and the man walked
toward the back door of the bar, and Purcell thought that Puckett
was going to go outside with him. Purcell hit the man in the back
with a pool stick and threw him to the ground. Steve assisted him in
getting the man to the ground, and someone got the gun and kicked
it on the floor. Purcell thought the man probably was punched and
kicked in the process. During the confrontation, Purcell recalled
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hearing something like a radio or police scanner coming from the
man.
[*P13] Purcell thought that he had two or three alcoholic drinks that
night, which he believed did not affect his judgment. Purcell
testified that he was able to view the man's face without the mask on
and identified appellant in the courtroom as that man.
[*P14] On cross-examination, Purcell agreed that he had not
included in his written statement to police that the man wore a ski
mask, that the man said the threatening words he just testified to
hearing, or that Purcell hit the man with a pool stick. When
questioned about his identification of appellant as the assailant,
Purcell testified that he did not get a good look at the man in the
mask, reiterated that he did see his face, and thought appellant did
not look exactly the same as he did on January 16, 2014. Purcell also
agreed that he had spoken to the Christmans, Gray, and the bartender
about the situation since the incident happened.
[*P15] Susan Puckett testified to being present and interacting with
the purported robber during the incident at the Old Landmark Bar
on January 16, 2014. Puckett testified that she was familiar with the
Old Landmark Bar because she "work[s] there." (Tr. at 150.)
Specifically, Puckett testified that her position at the bar was
"bartender" in January 2014, but at the time of trial she was "a
manager there." (Tr. at 150.) At the time of the incident, Puckett
testified that she was working in the capacity of a bartender. While
she was bartending, someone wearing a hoodie walked in the back
door and asked where the bathroom was located. After about five
minutes, Puckett testified that:
I guess I turned around, and he was there with a ski mask
on his face and a gun, demanding that I give him all the
money in the register and telling me that he would kill me
if I didn't comply. He stated to give him all of the money
and not to bullshit him or he would kill me.
I gave him all the money. He kept saying "all of it." And
then he asked for my keys, asked me if I had a car, and
wanted my keys. So I gave him -- I went and got my key
ring and I took the keys off of -- I took my car key off my
key ring and handed it to him.
He asked me where my car was at. I started to go out of the
building.
(Tr. at 152.)

5

[*P16] At that point, customers tackled the man, and Puckett called
911 and slid the dislodged gun away from him with her foot. After
police arrived, Puckett asked to see the man's face to see if she
recognized him, which she did not. In court, Puckett identified
appellant as the man who held up the bar. Eventually, all the money
taken was returned, and Puckett got back her car keys.
[*P17] On cross-examination, Puckett testified that she and the
others try not to talk about the incident with each other. Regarding
other disturbances at the bar, Puckett indicated that "in the four years
that [she has] been there," only about two other bar fights had
occurred. (Tr. at 171.) She agreed that in her written statement she
did not include expletive words used by the assailant when
demanding the money or that he wore a mask. She thought she told
the detective about the mask and noted that the man still had the
mask on when police arrived.
[*P18] Randall Beam, an officer with the Columbus Division of
Police, testified to responding to a robbery-in-progress dispatch on
January 16, 2014 at the Old Landmark Bar. When he arrived,
another officer had the suspect detained on the ground and was
placing handcuffs on him. Beam recovered cash from the suspect
and a nearby gun on the ground. Beam testified that police
additionally recovered a cell phone from the suspect running what
appeared to be a police scanner "app" in which the dispatch runs of
the city police could be heard. (Tr. at 185.) Concerning the behavior
of the bar patrons, Beam did not observe indications that they were
drunk or needed to be checked for sobriety.
[*P19] Craig Goodman, a patrol officer with the Columbus
Division of Police, likewise testified to responding to a robbery
dispatch on January 16, 2014 at the Old Landmark Bar. Goodman
entered the bar, observed that patrons had subdued the suspected
robber, and secured the suspect in handcuffs. Thereafter, Goodman
spoke to the patrons regarding the incident, then took the suspect to
the police car and secured property on his person. The property
recovered included, among other items, a pair of gloves, a ski mask,
a pocketknife, a cellphone and ear phones, a BB gun with a fake
silencer, and cash. Goodman identified appellant in court as the
person he placed in handcuffs that evening. On cross-examination,
Goodman agreed that on the day of the incident the weather was
cold with snow on the ground, that it was not uncommon for people
to have things like gloves and hats during such weather, and that
when he arrived it appeared that the suspect had taken "a pretty good
beating," enough so for Goodman to call medics. (Tr. at 202.)

6

[*P20] Todd Cress, a detective with the Columbus Division of
Police robbery unit, testified to investigating a robbery at the Old
Landmark Bar that allegedly occurred on January 16, 2014. As part
of his investigation, Cress interviewed the bar patrons, the other two
officers, and the suspect. In court, Cress identified appellant as the
suspect that he interviewed.
[*P21] During Cress's interview with appellant, after being read his
rights and agreeing to speak with the detective about this incident,
appellant claimed that he entered the bar, used the restroom, and
then sat down and ordered a beer. According to appellant, he only
had $12 in his pocket, and, in need of more money, he attempted to
sell the fake gun to the bar patrons for $20. Instead, out of nowhere,
one of the patrons who thought he knew appellant by the name of
"Buddy" began beating him and other patrons joined. (Tr. at 221.)
According to appellant, the bar patrons said "Call the cops. We'll say
he robbed the bar since he's got the gun," and everyone agreed since
they were all friends, and since the original patron at the source of
the fight had convinced the group that appellant gave his sister
gonorrhea. (Tr. at 222.) Appellant additionally explained that the ski
mask was a black toboggan for the cold weather and that he had the
police scanner to listen for robberies occurring in an area where he
had recently been robbed. During the interview, appellant denied
that police secured money from him and maintained his innocence
when Cress feigned having viewed a videotape of the incident.
[*P22] Sarah Carter testified that she worked as a bartender at the
TK Sports Bar on the evening of Tuesday, January 14, 2014, two
days prior to the Old Landmark Bar incident. According to Carter,
that night:
[A] gentleman walked in the door * * *. He started going
towards the restroom. I stopped him about halfway to the
restroom.
I said, "We don't have public restrooms." He barely looked
up at me and said, "I'm going to be getting a drink." Then
he proceeded in the restroom.
A couple minutes passed. He came back out, had a mask
over his face, came to the middle of the bar and held a gun
on me. It had one of those little red dots. That's what I
focused on. It was right on my chest. He asked for me to
give him all the money out of the register, and if I didn't,
he was going to kill me.
***
I panicked. I jumped. I was scared. I've never had anyone
point a gun at me. I immediately turned around, got him all

7

the money out of the register, handed it to him across the
bar, and he proceeded out of the bar.
(Tr. at 249-50.)
Carter testified that the words used by the man were "[g]ive me the
money out of the register" and then "[i]f you don't do this, I'm going
to kill you." (Tr. at 251.) Carter testified that she was able to look at
the man without a mask when he first came into the bar and
described his clothes as really baggy, like sweatpants, and perhaps
a sweatshirt or jacket. The mask worn by the man was black with
the eyes cut out, and the gun he carried was black with a laser
pointer.
[*P23] After the man left, Carter pressed a silent alarm button
underneath the bar and also used the phone to call police. Police
were unable to apprehend the person who robbed her that evening,
but she was later approached by detectives about a possible suspect.
The detectives asked her to view a line up of six photographs, and
Carter picked photograph four, the photograph of appellant, and
indicated she was 60 percent sure that the photo selected was the
person who robbed her. Regarding her percentage, Carter explained
that she had very little chance to view the individual because he
hardly made eye contact with her, and she did not want to pick the
wrong person, but that the more she looked at the photo array she
was "almost positive" that it was the person she chose. (Tr. at 267.)
In the courtroom, Carter, without hesitation, identified appellant as
the person who robbed her and stated that she was now "not worried
at all" that appellant is the wrong person. (Tr. at 275.)
[*P24] On cross-examination, Carter agreed that the description she
gave police after the incident indicated that the suspect was in his
late twenties to early thirties with light brown to blond hair. Carter
additionally agreed that in the notes of her photo array selection, she
indicated that her 60 percent determination was in part due to her
being unable to see the remainder of his body in the photo because
she thought the suspect was a heavier-set man.
[*P25] During the conversation about the photo array, appellant's
counsel asked Carter whether the second and fifth photograph
appeared to be the same person. Carter replied, "[t]hey look similar
* * *. They do look similar. I wouldn't tell you today they are the
same person." (Tr. at 276-77.) When pressed about why she did not
realize that two of the photographs were actually the same person,
Carter replied, "[b]ecause I knew they were not the people that
robbed me. I guess I didn't focus on that very much." (Tr. at 277.)
8

Carter agreed that she and the other bar patrons involved talked
about the incident between the day the alleged robbery occurred and
the day she viewed the photo array.
[*P26] Anjanette Meade, a bartender at TK Sports Bar, testified that
around 10:30 p.m. on January 14, 2014, she and her boyfriend were
sitting at the corner of the bar. According to Meade, a man entered
the bar wearing big sweats and went into the restroom after telling
Carter he would buy a drink. As Meade talked to her boyfriend, a
red light appeared on his forehead and face. Meade turned and
looked down the bar and saw a man with gloves, a mask, and a gun.
Meade thought they were being robbed and restrained her boyfriend
as the man later passed them to exit the bar.
[*P27] Meade testified that she was able to see the man's face
without the mask as he passed her on the way to the restroom, in
lighting that was probably dim. She said she had about two drinks
that evening that did not affect her judgment. A few days later, on
January 20, police asked Meade to see if a photo array included the
suspected robber. Meade testified that she picked photo number four
"[r]ight away" and was about 90 percent sure the man in that photo
was the person who robbed the bar. (Tr. at 304.) In court, Meade
testified that she remained confident in her choice and identified
appellant as the person she believed robbed TK Sports Bar.
[*P28] On cross-examination, before being informed by appellant
that photos two and five in the array were actually the same person,
Meade expressed her belief that the photos were "[a]bsolutely"
different people. (Tr. at 322.) Meade additionally confirmed that she
and Carter had been friends for about six years.
[*P29] Misty Temple testified that on the night of the incident she
was playing a game of pool at TK Sports Bar near the front entrance
of the bar. According to Temple, a man walked into the bar wearing
a toboggan rolled up on his face, a sweatshirt, and jeans. She heard
Carter tell the man that he had to get a beer and then saw the man
enter the restroom. When Temple next looked up, she saw the man
pointing a black gun with a red laser in Carter's face, asking for
money, and then saw him take the money and exit through the front
door with the gun still in his hand.
[*P30] Temple testified to looking at the man's face when he walked
into the bar proximate to the "pretty well lit" pool table area and
observing him first speak to Carter. (Tr. at 344.) Police asked her to
view a photo array on January 26, 2014, and Temple selected, with
90 percent certainty, photo number four as the person who robbed
9

the bar. She then changed her percentage to indicate she was 99
percent sure. In the courtroom, Temple testified that she remained
99 percent sure about the choice she made and identified appellant
as "[n]o question" the person who robbed the bar. (Tr. at 360.)
[*P31] On cross-examination, Temple agreed that in between the
incident and January 26, she spoke with Carter and Meade, and
someone contacted her to let her know a detective was looking for
her to conduct the photo array identification. When prompted to
look again at photos two and five of the array and asked by
appellant's counsel "They're the same person, aren't they," Temple
replied "[m]aybe." (Tr. at 354.) She agreed that at the time she
identified the fourth photo as the robber of TK Sports Bar, she did
not know photos two and five were the same person and explained
"I wasn't looking for the same person" but rather "the person that I
saw walking into TK's." (Tr. at 355.)
[*P32] Gary Bowman, a robbery detective for the Columbus
Division of Police, testified to responding with his partner, Kenneth
Kirby, to a robbery at the TK Sports Bar on the night of January 14,
2014. Bowman and Kirby interviewed Carter, Meade, and a few
other people that evening but did not apprehend a suspect. Days
later, Cress contacted him regarding potential commonalities
between the two incidents.
[*P33] With information gathered from Cress on the suspect in the
Old Landmark Bar case, Bowman compiled the photo array.
According to Bowman, to create a photo array, an officer inputs into
the computer the age, weight, height, facial hair qualities, and
hairstyle of the suspect, and then the computer pulls up all the
pictures that are supposed to be similar to those search parameters.
The officer then chooses five pictures out of those supplied.
Bowman testified that he was unware at the time he compiled the
array that two of the photos selected were the same individual and
said that he "didn't catch it" or review the names associated with the
photos provided on a second sheet. (Tr. at 374.) Bowman confirmed
that numbers two and five of the array were photographs of the same
individual taken at different time periods and stated that the photos
had "different faces" and "look[ed] like two different guys." (Tr. at
374.) Bowman provided the array to Kirby, who administered the
photo array with the witnesses.
[*P34] On cross-examination, Bowman agreed that Meade's
boyfriend, who was sitting with her at the bar, could not give a
description of the suspect. According to Bowman, four people
present at the bar that night could give a description of the robbery
10

suspect and were subsequently shown the photo arrays. Out of those
four, one person could not select a photo from the array as the
suspected robber. Furthermore, Bowman agreed that there "[n]ever"
should be a photo array with two of the same individuals and that,
in Bowman's opinion, to do so was improper and a violation of the
statute that governs photo arrays. (Tr. at 391.) Bowman disagreed in
this instance that the photo array was unfair to appellant because that
same person looked "so dramatically different" (Tr. at 391) in the
two photographs, which were over a "big time frame" (Tr. at 393),
so as to in essence be "two different faces" (Tr. at 391).
[*P35] Kenneth Kirby, a police officer with the Columbus Division
of Police robbery unit, testified to responding to a robbery at the TK
Sports Bar, interviewing witnesses there, reviewing the surveillance
video, and photographing the scene. According to Kirby, sometime
later Bowman identified a suspect and asked Kirby to approach
certain witnesses with photo arrays. Kirby did not know the name of
the suspect, had not viewed a photograph of the suspect, and did not
recall receiving a general email about the suspect broadcast by other
detectives. Kirby testified that Carter selected appellant and stated
she was 60 percent sure of her choice, Meade selected appellant
right away and stated she was about 90 percent sure of her choice,
and Temple selected appellant and stated she was 90 percent sure,
which she then changed to 99 percent sure, of her choice.
[*P36] On cross-examination, Kirby agreed that Temple told him
during his initial interview that the suspect had a mustache and a
slight goatee, that two other witnesses could not give a facial
description of the suspect during the initial interviews, and that
another witness shown the photo array could not pick anyone as the
suspect. Kirby also confirmed that he presented the same photo
array, with appellant in the fourth photograph position, to each
witness on different days and that it is generally possible for
witnesses to speak to each other about the arrays.
[*P37] Both parties rested. Appellant objected to the admission of
the photo array identification sheets due to the inclusion of the same
person twice. The remainder of appellee's exhibits were admitted
without objection, including appellant's taped interview with police,
the surveillance video, witness statements, and photographs. The
judge then read jury instructions, including a general credibility
instruction and the statement, "[r]emember, you must analyze each
incident independently from one another. Your decision, analysis
and verdict on one case may not affect your analysis, decision and
verdict on the other case. The law does allow you to consider modus
operandi not as it relates to whether he's a bad person, for two
11

incidents, but that the incidents were similar." (Tr. at 504.) Later, the
judge again stated, "Just to make sure there's no confusion, you
know there are three counts, right? Two counts as it relates to the
bars and one count as it relates to the bartender and the key. All three
of those cases have to be decided separately." (Tr. at 515.)
[*P38] The jury found appellant guilty of all three counts of seconddegree robbery under R.C. 2911.02. A sentencing hearing was held
on July 22, 2015, after which the judge imposed three years of
incarceration for each count of the Old Landmark Bar case to be
served consecutively to each other for a total of six years and three
years of incarceration on the TK Sports Bar case to be served
consecutively to the Old Landmark Bar case for a total of nine years
incarceration. Appellant filed a timely appeal to this court.
State v. Lytle, 2016-Ohio-3532, 2016 Ohio App. LEXIS 2368 (10th Dist. Jun. 21, 2016). Lytle was
represented on appeal by new counsel and raised four assignments of error, not including
ineffective assistance of trial counsel (Appellant’s Brief, State Court Record ECF No. 4, PageID
60, et seq.).
After the Tenth District affirmed the convictions and sentence, Lytle appealed pro se to the
Supreme Court of Ohio raising two propositions of law (Memorandum in Support of Jurisdiction,
State Court Record ECF No. 4, PageID 179, et seq.). The Ohio Supreme Court declined
jurisdiction. State v. Lytle, 147 Ohio St. 3d 1474 (2016).
While his direct appeal was pending, Lytle filed pro se a petition for post-conviction relief
under Ohio Revised Code § 2953.21 raising five claims of ineffective assistance of trial counsel
(Petition, State Court Record ECF No. 4, PageID 224, et seq.). The Common Pleas Court
dismissed the petition and Lytle appealed, but his appeal was dismissed for failure to file a brief
and the Tenth District twice denied motions for reconsideration (Entries, State Court Record ECF
No. 4, PageID 288. 296, 304). Lytle did not appeal further to the Supreme Court of Ohio.

12

On September 19, 2016,2 Lytle filed an Application to Reopen his direct appeal asserting
ineffective assistance of his appellate counsel (Motion, State Court Record ECF No. 4, PageID
307, et seq.). The Tenth District denied the Application because the post-conviction appeals in
question were pursued pro se and had been dismissed for failure to file a brief (Entry, State Court
Record ECF No. 4, PageID 323). Lytle also did not appeal this decision to the Ohio Supreme
Court. Having again obtained the assistance of counsel, he filed the instant Petition for Writ of
Habeas Corpus December 27, 2017.
Despite being represented by counsel, Lytle did not file his Petition in the form required
by Habeas Rule 2(d). Respondent reads the Petition as pleading seven grounds for relief (Return,
ECF No. 5, PageID 957-59). Instead of disagreeing with Respondent’s statement of the claims,
Petitioner organizes his Reply around four claims (1) ineffective assistance of trial counsel, (2)
double jeopardy, (3) unconstitutional pre-trial identification, and (4) improper joinder. The
analysis in this Report will be organized around the claims made in the Reply.

Analysis

Ineffective Assistance of Trial Counsel

In the Petition, Lytle claims he received ineffective assistance of trial counsel when his
trial attorney failed to file a notice of alibi and failed to present witnesses who would have
established that alibi (Petition, ECF No. 1, PageID 3, ¶ 14). That is the only claim of ineffective

2

Respondent has this date as June 7, 2016 (Return, ECF No. 5, PageID 957), but the Franklin County Clerk of Courts
time stamp shows September 29, 2016. This is consistent with the date of notarization at PageID 308.

13

assistance of trial counsel made in the Petition. Lytle elaborates in his Reply that several plea
bargains were offered which he would have accepted had he known his alibi witnesses would not
be called (Reply, ECF No. 10, PageID 1025-26). Respondent asserts this claim is barred by Lytle’s
procedural default in presenting it to the state courts (Return, ECF No. 5, PageID 976-79).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional claim
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a state’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which
14

a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman, 501 U.S., at 731-732, 111 S. Ct. 2546, 115 L.
Ed. 2d 640. The procedural default doctrine thus advances the same
comity, finality, and federalism interests advanced by the exhaustion
doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454,
113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
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.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines 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 under
[Wainwright v.] Sykes, 433 U.S. 72 (1977)]that there was "cause"
for him to not follow the procedural rule and that he was actually
prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner

15

can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015), citing House v. Bell, 547 U.S. 518,
536 (2006).
The relevant state court rule here is that one who files an appeal must brief the assignments
of error he wants the court of appeals to consider. Without question, Lytle failed to file a brief on
appeal from denial of his post-conviction petition and the Tenth District held that failure against
him. Thus, this claim of ineffective assistance of trial counsel is procedurally defaulted unless
Lytle can show excusing cause and resulting prejudice or some other excuse.
Lytle adverts to the fact that he has always claimed to be innocent and that actual innocence
will overcome a procedural bar (Reply, ECF No. 10, PageID 1021). In Souter v. Jones, 395 F.3d
577 (6th Cir. 2005), the Sixth Circuit held
[I]f 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
v. Delo, 513 U.S. 298, 316 (1995)."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.
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. The Court has noted
that "actual innocence means factual innocence, not mere legal
insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140
L.Ed.2d 828, 118 S.Ct. 1604 (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.
The Court counseled however, that the actual innocence exception
should "remain rare" and "only be applied in the 'extraordinary
case.'" Id. at 321.
395 F.3d at 590. However, the Reply does not advert to any new evidence, whether of the kinds
required by Souter or otherwise, instead asserting that “[n]ew evidence is only one way” to meet
16

the actual innocence requirement (ECF No. 10, PageID 1021, citing Gomez v. Jaimet, 350 F.3d
673 (7th Cir. 2003)). But Gomez upheld the procedural default found by the district court and
correctly refused to apply Massaro v. United States, 538 U.S. 500 (2003), a § 2255 case, to
proceedings under § 2254.
Lytle also seeks to avoid his procedural default by relying on Martinez v. Ryan, 566 U.S.
1 (2012), the Supreme Court held:
[W]hen a State requires a prisoner to raise an ineffective-assistanceof-trial-counsel claim in a collateral proceeding, a prisoner may
establish cause for a default of an ineffective-assistance claim in two
circumstances. The first is where the state courts did not appoint
counsel in the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where appointed counsel
in the initial-review collateral proceeding, where the claim should
have been raised, was ineffective under the standards of Strickland
v. Washington, 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To overcome the default, a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate
that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S.
322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing standards
for certificates of appealability to issue).
132 S.Ct. at 1318-19. In Trevino v. Thaler, 569 U.S. 413 (2013), the Court extended Martinez to
the Texas system. The Court held that even if though Texas’ law did not require ineffective
assistance of trial counsel claims to be raised in an initial collateral review proceeding as the
Arizona law at issue in Martinez did, it made it virtually impossible for appellate counsel to
adequately present such claims on direct appeal.
The Sixth Circuit has on multiple occasions elided the question whether Martinez and
Trevino apply in Ohio. In McGuire v. Warden, 738 F.3d 741 (6th Cir. 2013), Judge Rogers wrote
for the court:

Thus, Ohio law suggests two different ways to look at Trevino. On
the one hand, certain claims can for practical purposes only be
17

brought in an initial-review collateral attack in a post-conviction
petition. And Trevino recognized that a "meaningful opportunity to
present a claim of ineffective assistance of trial counsel" includes
"the need to expand the trial court record." 133 S.Ct. at 1921. Ohio
courts recognize that claims requiring evidence outside the record
may only be meaningfully litigated in post-conviction proceedings
and may loosen ordinary res judicata principles in such cases:
"although ineffective assistance of counsel ordinarily should be
raised on direct appeal, res judicata does not bar a defendant from
raising this issue in a petition for postconviction relief if the claim
is based on evidence outside the record[,] . . . even when the issue
of ineffective assistance of counsel was raised on direct appeal."
State v. Richmond, 2012-Ohio-2511, No. 97616, 2012 WL 2047991,
at *1 (Ohio Ct. App. 2012) (citing State v. Smith, 17 Ohio St. 3d 98,
17 Ohio B. 219, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985)). Thus, in
Ohio, if ineffective assistance cases are divided into two categories,
one could argue that the category requiring evidence outside the
record must be brought on collateral review in order for review to
be meaningful.
On the other hand, in the "ordinary" case, "ineffective assistance of
counsel at mitigation, just like ineffective assistance at trial, is an
issue that can be brought on direct appeal," State v. Combs, 100 Ohio
App. 3d 90, 652 N.E.2d 205, 212 (Ohio Ct. App. 1994) (collecting
cases), with a constitutionally required appellate attorney, see
Franklin v. Anderson, 434 F.3d 412, 428 (6th Cir. 2006) (citing
Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821
(1985)); see also State v. Davis, 119 Ohio St. 3d 422, 2008 Ohio
4608, 894 N.E.2d 1221, 1226 (Ohio 2008); Ohio R. App. P. 26(B).
Indeed, such a claim was raised on McGuire's direct appeal, and was
treated thoughtfully by the Supreme Court of Ohio on discretionary
review, albeit as part of an ineffective assistance of appellate
counsel claim. Arguably, then, the review of trial counsel
ineffectiveness claims in Ohio is more "meaningful" than in Texas,
because in Ohio there is "ordinarily" the availability of direct review
with constitutionally required counsel, with the back-up of collateral
attack where evidence outside the record is required. All of this
shows that the application of Trevino to Ohio ineffective-assistance
claims is neither obvious nor inevitable.
738 F.3d at751-52. In the absence of decision from the Sixth Circuit, this Court should be reluctant
to extend Martinez and Trevino to Ohio.
Even if Martinez and Trevino were applicable in Ohio, Lytle would still have to show that

18

his ineffective assistance of trial counsel claim was “substantial” to come within that exception.
In post-conviction he claimed that his attorney forgot to re-subpoena witnesses, including alibi
witnesses, but the State pointed out that that claim was refuted by the trial record where defense
counsel explicitly stated his reasons for not calling the witnesses, to wit, his obligation as an officer
of the court not to present certain kinds of testimony. In denying post-conviction relief, the trial
judge accepted this argument that the trial transcript refuted Lytle’s claims about his attorney’s
forgetfulness (Entry, State Court Record ECF No. 4, PageID 269).
In denying relief, Judge Serrott also relied on the Ohio doctrine of res judicata in criminal
cases. Id. As Judge Rogers noted in McGuire, supra, Ohio requires ineffective assistance of trial
counsel claims to be litigated on direct appeal if they can be; otherwise they are barred by res
judicata.
Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St.
2d 175 (1967), is an adequate and independent state ground of decision. Durr v. Mitchell, 487
F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell,
268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent,
17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899,
913 (S.D. Ohio 2001).
Any claim by Lytle that res judicata was improperly applied to his post-conviction
ineffective assistance of trial counsel claim could have been raised on appeal from denial of that
petition, but here Lytle committed the additional default of failing to file a brief.
In sum, Lytle’s habeas corpus claim of ineffective assistance of trial counsel is barred by
his procedural default in presenting it to the state courts. This claim should be dismissed.

19

Double Jeopardy

Lytle claims the Double Jeopardy Clause protects him from being twice convicted of
robbery for the events that occurred at the Old Landmark Bar, once for robbery of the business
and once for robbery of the person of the bartender, Susan Puckett (Reply, ECF No. 10, PageID
1026-29. Respondent defends this claim on the merits.
On his direct appeal to the Tenth District, Lytle’s second assignment of error was that the
trial court erred when it refused to merge these two robbery counts under Ohio Revised Code §
2941.25. The Tenth District held that these were separate crimes under the statute because there
were separate victims: Lytle took money belonging to the business and then demanded at
gunpoint3 and received her car keys from Ms. Puckett.
The Tenth District analyzed at some length the proper interpretation of Ohio Revised Code
§ 2941.25. State v. Lytle, supra, ¶¶ 52-66. Lytle attempts to reduce that argument to absurdity by
claiming that under the Tenth District’s reading, “every robbery of an establishment would lead to
at least two named victims in the indictment, the establishment and the individual person.” (Reply,
ECF No. 10, PageID 1027). Not so. Lytle first robbed the bar by demanding its money from its
agent who was present, the bartender. Then he took the personal property of the bartender by
demanding her car keys. Lytle likens the situation to that of a bank robbery, but the situations
would be parallel only if the bank robber took the bank’s money from a teller and then demanded
her engagement ring as well.
Lytle complains that the Tenth District did not apply the appropriate federal Double
Jeopardy test as enunciated in Blockburger v. United States, 284 U.S. 299, 304 (1932), and

3

Lytle was presumably not charged with aggravated robbery because the gun was a fake.

20

Missouri v. Hunter, 459 U.S. 359, 366 (1983) (Reply, ECF No. 10, PageID 1026-27). This is
hardly surprising since on appeal Lytle argued the Assignment of Error solely as a violation of
Ohio Revised Code § 2941.25 and did not cite any federal authority, much less Blockburger or
Hunter (Appellant’s Brief, State Court Record 4, PageID 61-64).
Be that as it may, the Sixth Circuit has held that an Ohio appellate decision under Ohio
Revised Code § 2941.25 is completely dispositive of the cognate Double Jeopardy claim. Jackson
v. Smith, 745 F.3d 206 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632 (1999), overruled
on other grounds by State v. Johnson, 128 Ohio St. 3d 153 (2010).
What determines whether the constitutional prohibition against
multiple punishments has been violated is the state legislature’s
intent concerning punishment. Specifically, “[w]ith respect to
cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.”
Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359,
366 (1983).
Where two offenses are the same for Blockburger purposes, multiple punishments can be
imposed if the legislature clearly intended to do so. Albernaz v. United States, 450 U.S. 333, 344
(1981); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984);
Garrett v. United States, 471 U.S. 773, 779 (1985). White v. Howes, 586 F.3d 1025, 1035 (6th Cir.
2009)(“The current jurisprudence allows for multiple punishment for the same offense provided
the legislature has clearly indicated its intent to so provide, and recognizes no exception for
necessarily included, or overlapping offenses.”) The Blockburger test is a rule of statutory
construction, not a constitutional test in itself. Volpe v. Trim, 708 F.3d 688 (6th Cir. 2013), citing
Albernaz. “When assessing the intent of a state legislature, a federal court is bound by a state
court’s construction of that state’s own statutes.” Volpe, citing Banner v. Davis, 886 F.2d 777,
21

780 (6th Cir. 1989).
It cannot be seriously contended that the General Assembly intended to give robbers one or
more freebies by letting them rob everyone present during an establishment robbery and then
requiring merger of the offenses.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100
(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Under Sixth Circuit precedent, the Tenth
District’s decision of the Ohio Revised Code § 2941.25 claim implicitly denies any Double
Jeopardy claim based on the same facts. Lytle has not shown that the Tenth District’s decision on
direct appeal is contrary to or an objectively unreasonable application of clearly established
Supreme Court precedent.
As part of his argument about double jeopardy, Lytle claims he was convicted on the basis
of a fictitious statute. He asserts, “[t]he three robbery counts for which Lytle was tried, convicted
and sentenced, contained a mental state that is not included in Ohio’s robbery statute. While Ohio’s
robbery statute does not contain the reduced mental state of “reckless,” Lytle was nonetheless indicted
with “reckless” as the required mental state.” (Reply, ECF No. 10, PageID 1029).

As Lytle points out, the Ohio robbery statute, Ohio Revised Code § 2911.02, does not
specify a required mens rea. However, Ohio Revised Code § 2901.21(B) requires proof of
recklessness when no other mental state is prescribed.

Ohio Rev. Code § 2901.21(B).

Furthermore, there is no requirement that the mens rea element be included in an indictment
charging offenses committed in violation of Ohio Rev. Code § 2911.02. “Today we . . . hold that
22

when an indictment fails to charge a mens rea element of the crime, but tracks the language of the
criminal statute describing the offense, the indictment provides the defendant with adequate notice
of the charges against him and is, therefore, not defective.” State v. Horner, 126 Ohio St.3d 466,
473, 2010-Ohio-3830 at ¶ 6 (2010). Nevertheless, each of the four counts in Lytle’s indictment
included the mens rea element of “recklessness.” (ECF No. 4, PageID 14-15.) Thus, had any
error occurred, it would be of the harmless variety.
Even if this argument had any merit, it comes far too late in the process. Lytle never
attacked the indictment as improper anywhere in the state court process, or even in his Petition. A
habeas petition cannot be effectively amended by raising a new issue in the reply, but must follow
the process provided in 28 U.S.C. § 2242.
Lytle’s Double Jeopardy claim should be dismissed with prejudice.

Unconstitutional Pre-Trial Identification

In his Third Ground for Relief, Lytle complains of unconstitutional pre-trial identification.
Respondent asserts this claim is procedurally defaulted by Lytle’s failure to present it as a federal
constitutional claim in the state courts. (Return, ECF No. 5, PageID 973-74.)
On direct appeal this claim was presented to the Tenth District as the Fourth Assignment
of Error and decided as follows:
[*P71] In his fourth assignment of error, appellant contends that
"the trial court violated R.C. 2933.83(C)(3) in the TK Sports Bar
case by failing to instruct the jury that the jury may consider
evidence of noncompliance with mandatory photo-lineup
procedures in determining the reliability of the witnesses' purported
identification of [a]ppellant." (Appellant's Brief at vii.)

23

[*P72] As a preliminary issue, appellant argues that even though he
did not request a jury instruction, pursuant to R.C. 2933.83(C)(3),
or specifically object to the lack of this jury instruction, he preserved
de novo review of this issue by objecting to the submission of the
photo array generally. We disagree. Generally, the time to call an
error to the court's attention is "at a time when such error could have
been avoided or corrected by the trial court." [State v.] Quarterman[,
140 Ohio St.3d 464, 2014-Ohio-4034] at ¶ 15 [2014], quoting State
v. Awan, 22 Ohio St.3d 120, 122 (1986), quoting State v. Childs, 14
Ohio St.2d 56 (1968), paragraph three of the syllabus. Hence, the
failure to object to the lack of a jury instruction under R.C.
2933.83(C)(3) constitutes a waiver of all but plain error on appeal
under Crim.R. 52(B). State v. Wells, 8th Dist. No. 98388, 2013Ohio-3722, ¶ 97, citing State v. Williams, 51 Ohio St.2d 112 (1977);
State v. Thompson, 4th Dist. No. 12CA688, 2013-Ohio-2235, ¶ 23.
[*P73] The record demonstrates that defense counsel did not object
to the instructions the jury received in this case. Accordingly, we
address this assignment of error under the plain error standard. "To
prevail under the plain-error standard, a defendant must show that
an error occurred, that it was obvious, and that it affected his
substantial rights." State v. Obermiller, [147] Ohio St. 3d [175,
2016-Ohio-1594, ¶ 62, citing State v. Barnes, 94 Ohio St.3d 21, 27
(2002) (stating that an error affects substantial rights under Crim.R.
52(B) only if it affects the outcome of the trial). See also State v.
Arnold, [147] Ohio St.3d [138], 2016-Ohio-1595, ¶ 65, citing State
v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus
(holding that an error does not rise to plain error unless "but for the
error, the outcome of the trial clearly would have been otherwise").
We take "[n]otice of plain error * * * with the utmost caution, under
exceptional circumstances and only to prevent a manifest
miscarriage of justice." Long at 97.
[*P74] R.C. 2933.83 "requires any law enforcement agency or
criminal justice entity that conducts live lineups and photo lineups
to adopt minimum procedures for conducting the lineups."
Thompson at ¶ 22; R.C. 2933.83(B). For example, these minimum
procedures include, unless impracticable, use of a "blind or blinded
administrator" and having the administrator make a written record
of the identification. Id. The statute "do[es] not prohibit a law
enforcement agency or criminal justice entity from adopting other
scientifically accepted procedures for conducting * * * photo
lineups that the scientific community considers more effective."
R.C. 2933.83(D). Furthermore, R.C. 2933.83(A)(8) defines a
"[p]hoto lineup" as "an identification procedure in which an array of
photographs, including a photograph of the suspected perpetrator of
24

an offense and additional photographs of other persons not
suspected of the offense, is displayed to an eyewitness for the
purpose of determining whether the eyewitness identifies the
suspect as the perpetrator of the offense."
[*P75] The "penalt[ies]" for failing to comply with R.C. 2933.83 is
a potential jury instruction under R.C. 2933.83(C)(3), and, if the
procedure was "impermissibly suggestive," potential suppression of
the identification. Wells at ¶ 84, 98. R.C. 2933.83(C)(3) states:
When evidence of a failure to comply with any of the
provisions of this section, or with any procedure for
conducting lineups that has been adopted by a law
enforcement agency or criminal justice agency pursuant to
division (B) of this section and that conforms to any
provision of divisions (B)(1) to (5) of this section, is
presented at trial, the jury shall be instructed that it may
consider credible evidence of noncompliance in
determining the reliability of any eyewitness identification
resulting from or related to the lineup.
[*P76] Appellant contends that evidence of a failure to comply with
the provisions of R.C. 2933.83 was presented at trial in order to
trigger a jury instruction. Specifically, appellant points to Bowman's
and Kirby's testimonies as evidence that including two photographs
of the same person violated the Columbus police lineup procedure.
It is true that Bowman expressed his own opinion that including two
photographs of the same person was a statutory violation. However,
the minimum statutory requirements and definition of photo array in
R.C. 2933.83 do not address whether five distinct people must be
included in the array alongside the defendant. In addition, testimony
reflecting the officers' belief that the duplication never should have
occurred falls short of establishing a procedure against photo
duplication "adopted" by the Columbus police department under
R.C. 2933.83. R.C. 2933.83(C).
[*P77] In other words, whether or not a violation of R.C. 2933.83
occurred is not obvious from record evidence. As such, we cannot
say any possible defect in not including a jury instruction, pursuant
to R.C. 2933.83(C)(3), rises to the level of "plain" error within the
meaning of Crim.R. 52(B). Barnes at 28. See also Thompson at ¶ 24
(finding, in the context of a court's failure to impose a jury
instruction under R.C. 2933.83(C)(3), no plain error occurs where
insufficient record evidence demonstrates noncompliance with the
statute).

25

[*P78] We likewise cannot say that any possible error in not
including the R.C. 2933.83(C)(3) jury instruction affected the
outcome of the trial. The jury heard extensive testimony and crossexamination regarding the photo array identifications and the two
photographs of the same person. The witnesses testified that they
did not know that two photographs of the same person were placed
in the photo array and that it did not affect their selections of
appellant in the photo array, and all identified appellant in court as
the person who robbed TK Sports Bar. Our own review of the photo
array, which is in the record on appeal, shows that the two
photographs at issue are significantly different and not readily
identifiable as the same person.
[*P79] Furthermore, the trial court gave the jury general
instructions regarding the value of identification testimony and
credibility of identification witnesses, which specifically asked the
jury to consider whether each identification witness had the
opportunity to make a reliable observation and specified that the jury
could take into account the strength of the identification and the
circumstances under which the identification was made. Such a
general credibility instruction allows a jury to assess the value of
photo identification testimony. Thompson at ¶ 24 (finding no plain
error occurred in trial court's failure to give a R.C. 2933.83(C)(3)
instruction where jury received a general credibility instruction and
heard sufficient testimony regarding the identification); Wells at ¶
100 (finding no plain error in trial court's failure to give a R.C.
2933.83(C)(3) instruction where a general credibility instruction
"provided guidance to the jury to consider the circumstances
surrounding the identification"). Therefore, appellant's substantial
rights were not affected, and for all the above reasons, we find no
plain error.
[*P80] Accordingly, appellant's fourth assignment of error is
overruled.
State v. Lytle, 2016-Ohio-3532 (some internal quotation marks omitted).
As can be readily seen, the Tenth District decided this Assignment of Error solely under
the Ohio photo identification statute, Ohio Revised Code § 2933.83. It did not purport to be
deciding any federal constitutional issue nor cite any federal constitutional authority. This is
scarcely surprising since the Assignment was presented solely as a state law issue and no federal
case law authority was cited (Appellant’s Brief, State Court Record ECF No. 4, PageID 62, 6326

65).
Lytle makes no separate argument to attempt to show cause and prejudice for this lack of
fair presentation on appeal. If it were ineffective assistance of appellate counsel to fail to argue
this as a federal constitutional issue (which Lytle does not argue), that claim would have to first
be presented to the state courts in an application to reopen under Ohio App.R. 26(B). Edwards v.
Carpenter, 529 U.S. 446 (2000). Lytle has never filed such an application with respect to
representation on direct appeal and the time during which he could have filed such an application
has long since expired.
Lytle’s claim of unconstitutional pretrial identification is barred by procedural default and
should be dismissed with prejudice.

Failure to Sever Trials

Lastly, Lytle claims the failure to separately try the counts relating to the Old Landmark
Bar from those relating to the TK Sports bar deprived him of a fair trial in violation of the Sixth
Amendment.
Respondent asserts this claim is procedurally defaulted as well. The Warden notes that
Lytle made his claim for severance in the trial court exclusively under Ohio R. Evid. 404(B). On
appeal, he changed theories and made his claim solely under Ohio R. Evid. 404(A). Finally, he
failed to appeal this issue to the Supreme Court of Ohio.
Denial of severance was Lytle’s Third Assignment of Error on direct appeal which the
Tenth District decided as follows:

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[*P62] In his third assignment of error, appellant contends the trial
court erred in denying his motion to sever the trial of the two cases.
For the following reasons, we disagree.
[*P63] Ohio's criminal rules permit a court to order two or more
indictments to be tried together "if the offenses * * * could have
been joined in a single indictment." Crim.R. 13. Crim.R. 8(A) states
that two or more offenses may be charged in the same indictment if
they are of "the same or similar character, or are based on the same
act or transaction, or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or
plan, or are part of a course of criminal conduct." State v. Sullivan,
10th Dist. No. 10AP-997, 2011-Ohio-6384, ¶ 21. Joinder of multiple
offenses in a single trial is generally favored because it "'conserves
judicial and prosecutorial time, lessens the not inconsiderable
expenses of multiple trials, diminishes inconvenience to witnesses,
and minimizes the possibility of incongruous results in successive
trials before different juries.'" Id., quoting State v. Walters, 10th
Dist. No. 06AP-693, 2007-Ohio-5554, ¶ 21.
[*P64] Nonetheless, an accused may move to sever counts of an
indictment on the grounds that he or she will be prejudiced by the
joinder of multiple offenses. State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, ¶ 49. To succeed on a motion to sever, a defendant
"'must furnish the trial court with sufficient information so that it
can weigh the considerations favoring joinder against the
defendant's right to a fair trial.'" State v. Lott, 51 Ohio St.3d 160, 163
(1990), quoting State v. Torres, 66 Ohio St.2d 340 (1981), syllabus.
[*P65] The state can negate a defendant's claim of prejudicial
joinder in two ways. LaMar at ¶ 50. First, if the state shows that
evidence of one offense would be admissible at a separate trial of
the other offense as "other acts" evidence under Evid.R. 404(B),
then joinder of the offenses in the same trial cannot prejudice the
defendant. State v. Tipton, 10th Dist. No. 04AP-1314, 2006-Ohio2066, ¶ 27, citing LaMar at ¶ 50; State v. Brinkley, 105 Ohio St.3d
231, 2005-Ohio-1507, ¶ 30; State v. Coley, 93 Ohio St.3d 253, 259
(2001). Second, a joinder cannot result in prejudice if the evidence
of the offenses joined at trial is simple and direct, so that a jury is
capable of segregating the proof required for each offense. Tipton at
¶ 27, citing State v. Johnson, 88 Ohio St.3d 95 (2000); State v. Mills,
62 Ohio St.3d 357, 362 (1992). These two tests are disjunctive so
that the satisfaction of one negates a defendant's claim of prejudice
without having to consider the other test. State v. Gravely, 188 Ohio
App.3d 825, 2010-Ohio-3379, ¶ 38 (10th Dist.), citing State v.

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Cameron, 10th Dist. No. 09AP-56, 2009-Ohio-6479, ¶ 35, citing
Mills at 362.
[*P66] Generally, an appellate court will not reverse a trial court's
decision to deny severance unless the trial court has abused its
discretion. Lott at 163. An abuse of discretion means that a trial
court's ruling was unreasonable, arbitrary, or unconscionable. State
v. Vasquez, 10th Dist. No. 05AP-705, 2006-Ohio-4074, ¶ 6.
However, here, appellant did not move the trial court to sever the
indictments either at the close of appellee's case-in-chief and the
close of all evidence. As such, as acknowledged by appellant in his
reply brief, he has waived all but plain error review on appeal. State
v. Corker, 10th Dist. No. 13AP-264, 2013-Ohio-5446, ¶ 12-13.
"'Plain error does not exist unless the appellant establishes that the
outcome of the trial clearly would have been different but for the
trial court's allegedly improper [joinder].'" Id. at ¶ 12, quoting State
v. McGee, 8th Dist. No. 92019, 2010-Ohio-2081, ¶ 24, citing State
v. Waddell, 75 Ohio St.3d 163, 166 (1996).
[*P67] Appellant concedes that the evidence is simple and direct
and that no violation of Evid.R. 404(B) or Crim.R. 14 occurred.
Instead, appellant argues that "[a]llowing a jury hearing the TK
Sports Bar case, in which the only contested issue was identity, to
hear evidence of [appellant's] guilt in the Old Landmark Bar case
violated Evid.R. 403(A), because the evidence was more prejudicial
than probative" and curing the prejudice was "impossible."
(Appellant's Brief at 36.) Appellant made neither argument to the
trial court. It is well-settled [sic] that a party may not raise an issue
on appeal that was not initially raised before the trial court. State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15.
[*P68] Furthermore, we note that, even if appellant's Evid.R.
403(A) argument could be inferred from his arguments to the trial
court, the argument under Evid.R. 403(A) is only relevant to
challenge appellee's assertion regarding the hypothetical
admissibility of the evidence. The Evid.R. 403(A) argument does
not negate the "simple and direct" evidence of the offenses, which
is a separate means to negate a defendant's claim of prejudice from
joinder. LaMar at ¶ 50; Lott at 163. As previously stated, appellant
concedes the evidence is simple and direct, and, as such, "a joinder
cannot result in prejudice." Tipton at ¶ 27.
[*P69] Considering all the above, we cannot say that it was an abuse
of the trial court's discretion, let alone plain error, for the court to
allow the indictments to remain joined throughout the trial.

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State v. Lytle, 2016-Ohio-3532. A straightforward reading of the opinion supports Respondent’s
view that Lytle forfeited this claim by changing theories between the trial and appellate courts.
The record also shows that denial of severance was not one of the claims Lytle pursued
before the Ohio Supreme Court (Memorandum in Support of Jurisdiction, State Court Record ECF
No. 4, PageID 180).
Lytle offers no purported cause to excuse omitting this claim before the Ohio Supreme
Court. As with the pre-trial identification claim, if he blames the change of theories between the
trial court and the court of appeals on ineffective assistance of appellate counsel, that claim is also
procedurally defaulted by Lytle’s failure to file a 26(B) application to reopen the direct appeal.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

July 25, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party=s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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