Baker v. Warden Noble Correctional Institution

Filing 13

REPORT AND RECOMMENDATIONS - It is respectfully recommended that 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 sh ould 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 5/13/2016. Signed by Magistrate Judge Michael R. Merz on 4/26/2016. (kpf)(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
WESTERN DIVISION AT DAYTON
LARRY BAKER,
Petitioner,

:

- vs -

Case No. 3:15-cv-414
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN,
Noble Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court for decision on the merits. Mr. Baker seeks
relief from his conviction in the Montgomery County Common Pleas Court on four counts of
murder, one count of aggravated robbery, and one count of felonious assault. He pleads the
following grounds for relief:
Ground One: Evidence was insufficient to convict Mr. Baker.
Supporting Facts: The record is devoid of any evidence Mr.
Baker was aware the robbery of the pawn shop was going to take
place. The record is also devoid of any evidence Mr. Baker acted
in concert with or aided or assisted the co-offenders in committing
robbery. Because the State failed to produce any evidence Mr.
Baker participated in the robbery or had knowledge of the robbery,
the death of the victim and co-defendant could not be a foreseeable
result of Mr. Baker’s actions.
Ground Two: Mr. Baker’s trial counsel was ineffective.
Supporting Facts: Counsel demonstrated a lack of basic
knowledge related to the motion to suppress. Counsel failed to file

1

the right motion to suppress. Mr. Baker was prejudiced by
counsel’s failure to file the appropriate motion to suppress.
Ground Three: Ineffective assistance of trial counsel.
Supporting Facts: Trial counsel failed to investigate and
subpoena crucial witnesses in Mr. Baker’s case that would have
vindicated Mr. Baker of any knowledge of criminal activity.
(Petition, ECF No. 1.)

Procedural History

In March 2012 the Montgomery County Grand jury indicted Baker on four counts of
murder with firearm specifications, two counts of felonious assault, and two counts of
aggravated robbery. At sentencing, the trial judge merged the counts of murder relating to each
victim and the firearm specifications relating to each and imposed a sentence of thirty-six years
to life imprisonment. The Second District affirmed the convictions and sentence. State v. Baker,
2014-Ohio-3163, 2014 Ohio App. LEXIS 3082 (2nd Dist. July 18, 2014), appellate jurisdiction
declined, 141 Ohio St. 3d 1456 (2015).
On February 19, 2014, Baker filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21, raising a claim of ineffective assistance of trial counsel for failure to
investigate and subpoena witnesses. The trial court denied relief and Baker appealed, claiming
error in the trial judge’s failure to hold an evidentiary hearing. The Second District affirmed.
State v. Baker, 2015-Ohio-338, 2015 Ohio App. LEXIS 315 (2nd Dist. Jan. 30, 2015), appellate
jurisdiction declined, 2015-Ohio-1896, 2015 Ohio LEXIS 1329.

2

On September 18, 2014, Baker filed an application to reopen his direct appeal which the
Second District denied. He did not appeal this decision to the Supreme Court. Baker filed his
Petition here November 19, 2015.

ANALYSIS

Ground One: Insufficiency of the evidence.

Baker asserts in his First Ground for Relief that he was convicted on insufficient
evidence. An allegation that a verdict was entered upon insufficient evidence states a claim
under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United
States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in
Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which
determines the elements of offenses; but once the state has adopted the elements, it must then
3

prove each of them beyond a reasonable doubt. In re Winship, supra.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc); Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). Notably, “a court may
sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v.
Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

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We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
The Second District considered this ground for relief along with Baker’s claim that his
conviction was against the manifest weight of the evidence. It held
[*P5] Baker raises three assignments of error on appeal. His first
two assignments challenge the weight and sufficiency of the
evidence, and we will address them together.
[*P6] An argument based on the sufficiency of the evidence
challenges whether the State has presented adequate evidence on
each element of the offense to allow the case to go to the jury or to
sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio
St.3d 380, 386, 1997 Ohio 52, 678 N.E.2d 541 (1997). Under a
sufficiency analysis, an appellate court does not make any
determinations regarding the credibility of witnesses. State v. Goff,
82 Ohio St.3d 123, 139, 1998 Ohio 369, 694 N.E.2d 916 (1998),
citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. An appellate court's function when
reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average
mind of the defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492
(1991),
paragraph
two
of
the
syllabus.

5

[*P7] In contrast, when reviewing an argument challenging the
weight of the evidence, "'[t]he court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. The discretionary power to grant
a new trial should be exercised only in the exceptional case in
which evidence weighs heavily against the conviction.'"
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,
175, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983).
[*P8] Where an appellate court determines that a conviction is
not against the manifest weight of the evidence, the conviction is
necessarily based on legally sufficient evidence. State v. Million,
2d Dist. Montgomery No. 24744, 2012-Ohio-1774, ¶ 23; State v.
Combs, 2d Dist. Montgomery No. 19853, 2004-Ohio-2419, ¶ 12.
[*P9]

The State established the following facts at trial.

[*P10] On Thursday, December 22, 2011, Baker, Taylor, and
McClain had cell phone conversations in the early morning hours
and departed together from Detroit in Taylor's green and tan
Pontiac Astro van. They drove to the Dayton area and parked a
short distance from the Cash and Go pawn shop on Salem Avenue.
Ilya Golub opened the shop at 9:00 a.m, and Taylor entered the
shop. Baker and McClain entered the establishment about five
minutes after Taylor; Baker carried a backpack. Video surveillance
tapes showed that, after Baker and Taylor walked up and down the
aisles of the shop, the men converged near the counter and
confronted Golub. Taylor shot Golub several times at close range.
Golub managed to return fire as the men were leaving the shop,
striking McClain.
[*P11] The three men ran to the van, turned it around on a side
street, and drove on Salem Avenue toward Interstate 75. A man
who had been eating breakfast at a restaurant across the street from
the pawn shop saw the three men run from the shop and enter the
green Astro van, but he was unsure which man was driving. He ran
to his car and followed the van until it entered the highway. He
then returned to the pawn shop and gave the van's Michigan
license plate number to sheriff's deputies, who had arrived at the
scene. Several witnesses testified that a silver gun was on the
ground in the pawn shop parking lot.
[*P12] Another employee of the pawn shop testified that he had
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arrived for work a few minutes late on December 22, 2011, and
found the door "busted" (the glass had been shot out) and Golub on
the floor behind the counter with a gun in his hand; Golub was not
moving. The employee testified that Golub was known to carry a
gun in the store and that the store kept large amounts of cash in a
safe to facilitate loans. No testimony was offered about what, if
anything, was taken from the pawn shop.
[*P13] The deputies broadcast a description of the van; they also
recovered the revolver from the parking lot and spent casings from
in and around the pawn shop and from the exterior of the building
across the street. They discovered that the van was registered to
Taylor.
[*P14] Sherri Webb, a cousin of Taylor and an emergency
medical technician in Michigan, testified that she received a series
of phone calls from Taylor on December 22, 2011, beginning at
approximately 10:00 a.m. Taylor stated that his friend had been
shot, and Webb provided Taylor with instructions on performing
CPR and information about the locations of hospitals along
Interstate 75 in Ohio and Michigan along the route to Detroit.
Taylor later told Webb that he "dumped Wayne" (McClain) on
Kirby Street in Detroit. Webb testified that Kirby was not far from
I-75. Webb contacted the police in an effort to save McClain
(although she did not know his identity at the time).
[*P15] At approximately 1:10 p.m. on December 22, 2011,
McClain's body was found in an alley near 609 East Kirby Street
in Detroit, with bullet wounds in the elbow and upper back.
[*P16] Fatimah Muhammad, one of Taylor's girlfriends, testified
that Taylor came to her house around 3:00 p.m. on December 22,
and entered through the back door, which was unusual. Her garage
was about 15 feet from the back door. She testified that Taylor was
very upset when he came in, and was crying, but that he did not
stay long. He was picked up by someone in a red SUV, and went to
an appointment with his parole officer. She never saw him or the
red SUV again. She later learned that the red SUV belonged to
Baker.
[*P17] By the afternoon of December 22, the Montgomery
County Sheriff's Office was working with a cellular service
provider to obtain information about the real-time location of two
phones associated with Taylor. The sheriff's department asked the
Southfield, Michigan, police department to set up surveillance on
Taylor, and it informed the Southfield police that Taylor might be
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at a certain address. The Southfield police recognized this address
as a parole office and responded to that address while Taylor was
still in the building. While Taylor was being arrested at the parole
office, his cell phones received several incoming calls from
"Larry."
[*P18] On December 23, 2011, Montgomery County Sheriff's
Office detectives, working in conjunction with the Michigan State
Police, used cell phone records to identify a connection between
Taylor and "Larry" (Baker), and they obtained a photograph of
Baker. When this photograph was compared with the video from
the pawn shop robbery, Baker was identified as a suspect, and a
search warrant was obtained for his home on Santa Rosa Drive in
Detroit. McClain's wallet was found under a mattress in the home,
but Baker's location was unknown at that time. A warrant was
issued and he was arrested at his home in February 2012.
[*P19] Also on December 23, Taylor's van was found parked
inside the garage at Muhammad's home. An atlas, cleaning
supplies, rags, and a lottery ticket were found in the van.
Muhammad, who did not store a car in her garage, testified that she
had been unaware that Taylor's van was parked in her garage until
the police arrived. A large red stain was present on the second row
of seats inside the van, some of which appeared to have been
bleached. Muhammad testified that she had ridden in the van on
Wednesday, December 21, and the cleaning supplies, the blood
stain, and the lottery ticket had not been in the van at that time.
[*P20] The lottery ticket found in the van was purchased on
December 22, 2011, at 1:04 p.m. The ticket led the Michigan State
Police to a lottery terminal at a CVS in Detroit, four to five blocks
from Kirby Street. Surveillance videos from the CVS at the
relevant time showed two men drive into the parking lot in a 1995
Pontiac minivan matching the description of the van involved in
the pawn shop robbery; surveillance video inside the store also
showed Baker, dressed in the same clothing as in the pawn shop
video, purchasing a lottery ticket. The other man stayed in the van,
which remained in the CVS parking lot while Baker was in the
store.
[*P21] Montgomery County Sheriff's Office Detective Patrick
O'Connell testified that he had tracked the activities and location of
the cell phone towers off of which Taylor's, McClain's and Baker's
cell phones had "pinged" the morning of December 22, 2011. He
documented that the men had exchanged phone calls during the
night and that, beginning shortly after 4:40 a.m., the coordinates of
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their travel had generally followed a path from Southfield,
Michigan to Santa Rosa Avenue in Detroit (Baker's residence),
south along I-75 to Toledo and on to Dayton, where there was a
ping 1/4 mile from the pawn shop, and then north again along I-75
to Detroit and a location near Kirby (where McClain's body was
dumped), to the area of Muhammad's house, and then to the parole
office.
[*P22] An inmate who spent some time in the same pod with
Baker at the Montgomery County Jail testified that, in talking
about why he was in jail, Baker had described "[being] on a roll"
from Detroit when he committed a robbery involving a shoot-out.
According to the fellow inmate, Baker claimed that he had only
been driving the car and that the "other two dudes" did the
shooting.
[*P23] DNA linked to McClain and Baker was found on the gun
in the pawn store parking lot. DNA evidence found on the steering
wheel and driver's door of the Astro van belonged to Taylor. The
blood on the second seat of the van belonged to McClain.
[*P24] The forensic pathologist who conducted the autopsy of
McClain testified that, based on his injuries, McClain could have
run a short distance after he was shot. He also testified that
McClain would likely have survived the "tension pneumothorax"
that killed him, if he had received treatment.
[*P25] Baker did not call any witnesses at trial. His attorney did
not deny that Baker had made the trip from Detroit to Dayton with
his friends or that he had been present at the robbery and shooting;
the defense asserted that Baker had been a mere bystander during
the robbery and had not known that the other men intended to rob
the pawn shop.
[*P26] The jury was instructed on complicity and aiding and
abetting, as well as the principal offenses with which Baker was
charged. It was further instructed that "[t]he mere presence of an
accused at the scene of the crime and the fact that he was
acquainted with the perpetrator is not sufficient proof in and of
itself that he was an aider or abettor." It was also correctly
instructed that it could rely on direct and/or circumstantial
evidence, and that it could infer facts from other facts that had
been proven by the evidence.
[*P27] The record contains substantial competent, credible
evidence upon which the jury could have reasonably concluded
9

that Baker conspired with, assisted or encouraged Taylor and
McClain in the robbery of the pawn shop. If Baker was involved
with the robbery in any of these ways, it makes no difference who
held or fired the gun(s) used in the offense; he would be equally
guilty of robbery and murder. See R.C. 2923.03; State v. Letts, 2d
Dist. Montgomery No. 15681, 2001 Ohio App. LEXIS 2749, 2001
WL 699537, * 4 (June 22, 2001); State v. Cochran, 3rd Dist.
Marion No. 9-81-30, 1982 Ohio App. LEXIS 14920, 1982 WL
6795, * 5 (May 19, 1982).
[*P28] As stated above, the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact;
the jury is free to believe all, part, or none of the testimony of each
witness who appears before it. It is also permitted to draw
reasonable inferences from the evidence presented. The jury chose
to believe the State's version of the facts. Baker's conviction was
supported by sufficient evidence, and we cannot say that the jury
clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed.
[*P29] The first and second assignments of error are overruled.
State v. Baker, 2014-Ohio-3163, 2014 Ohio App. LEXIS 3082 (2nd Dist. July 18, 2014).
The Second District applied the correct standard of law because State v. Thompkins,
supra, embodies the Jackson v. Virginia, 443 U.S. 307 (1979) standard articulated by the
Supreme Court.
Baker disagrees with the Second District’s conclusion and offers a counter statement of
facts (Reply, ECF No. 12). The facts which he claims are true but which differ from the findings
of fact by the Second District recited above are:
1.

On the morning of the crime, Darren Taylor called Baker and asked him to go along to

Dayton to “pick up some money.” Id. at page 4.
2.

No more than five minutes after entering the pawn shop, the employee waives [sic] to

Anthony McClain at the rear of the shop and McClain that Petitioner both walk to the counter
and stood next to Darren Taylor, however, McClain turned and walked toward the front door of

10

the pawn shop. While the employee is talking to McClain, Taylor pulls from his waist band a
semiautomatic [sic] hand gun and grabs the employee and pulls him to close to him. Petitioner is
shown to be shocked and stunned at what has just transpired in the pawn shop security
surveillance video. Petitioner backs away from the commotion and witness McClain pull out a
chrome .357 revolver from his waist band and fires a shot towards the employee and shortly
thereafter, Taylor also fires a shot towards the employee. Video shows Petitioner in a trance like
state, confused, not knowing what to do, run or duck. Petitioner collected his thoughts and ran
out the pawn shop. Taylor and McClain followed.
3.

When the men re-entered the van and headed back to Detroit, as soon as Baker saw

McClain was bleeding, he asked Taylor to let him out, but Taylor refused.
4.

When the got to Detroit, Baker called police and told them where to find McClain’s

body.
5.

Baker told his trial attorney, Clyde Bennett, that Taylor would testify that Baker did not

know a robbery was planned.
All of these facts, if true, would have supported Baker’s claim that he was not a
participant in the crimes. Baker writes in his Reply as if these facts were true. However, he did
not testify at trial and in fact no witnesses were called by the defense at trial. He provides no
record references to anywhere in the state court record where admitted evidence of these facts
can be found.
The question whether the Second District’s decision on the sufficiency of the evidence
question was a reasonable application of Jackson v. Virginia, 443 U.S. 307 (1979) must be
decided on the basis of the facts before that court, not facts added to the record later. In Cullen v.
Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a federal court’s review of a state

11

court decision under 28 U.S.C. § 2254(d)(1) is strictly limited to “review of the state court
record,” and that evidence acquired through use of an evidentiary hearing may not be considered.
Id. at 182.
Baker cites Ohio law to the effect that a bystander or an acquaintance of the perpetrator
who happens to be present when a crime is committed cannot be convicted on that basis alone.
But, as the Second District found, the jury was properly instructed on this law and inferred from
the testimony that Baker was part of the plan to rob the pawn shop. Baker exercised his Fifth
Amendment privilege not to testify and the jury was instructed that they could not hold that
against him. But without his testimony, all the jury had was his lawyer’s claim about what
happened, and they were properly told that what lawyers say at trial is also not testimony. The
jury might well have wondered how likely it is that a man in Detroit will get in a car a 5:00 in the
morning and drive with two friends the more than 200 miles to Dayton, Ohio, just to “pick up
some money”. The jury also heard that Baker’s DNA was on the gun found in the pawn shop
parking lot without hearing any innocent explanation of that undisputed fact.
Taken together, the facts proven at trial are sufficient to support the convictions. Baker
has not shown that the jury’s and the Second District’s decisions are objectively unreasonable
applications of Jackson. The First Ground for Relief should be dismissed with prejudice.

Ground Two: Ineffective Assistance of Trial Counsel

In his Second Ground for Relief, Baker alleges ineffective assistance of trial counsel in
connection with his motion to suppress in this case. Baker particularizes this claim in his Reply:
In the case in chief, trial counsel was ineffective throughout the
pendency of the case. Beginning at the motion to suppress
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hearing, counsel demonstrated a lack of basic knowledge related to
the issue at hand. Specially [sic], the motion to suppress that was
filed on Petitioner’s behalf related to a search warrant. In the
motion filed trial counsel did not raise issues related to the
affidavit that accompanied the warrant (in common legal parlance,
a Franks motion, referring to Franks v. Delaware, 438 U.S. 154,
98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).) At the suppression hearing
trial counsel attempted to ask questions that relate to a Franks
motion, however, the court correctly sustained the State's objection
due to counsel not filing the correct motion to suppress. (Vol. VI
Tr. 18-19). The transcript of the jury selection is fraught with
defense counsel's inability to articulate the correct legal standards,
or to communicate effectively with the jury. (Vol. 1, Tr. 118, 131,
133, 139, 140-142, 170). the frustration the trial court had with
defense counsel is also obvious throughout the transcript. (Vol. 1,
Tr. 157, 164-165, Vol. VI, Tr. 223-224). Petitioner has been
prejudiced because of the ineffectiveness of trial counsel related to
not filing the appropriate motion as well as not effectively
defending Petitioner during trial. It is one thing to zealous advocate
for a client it is another for counsel to be so cantankerous that it
becomes a harm to the client. Petitioner was prejudice [sic] by trial
counsels behavior.
(Reply, ECF No. 12, PageID 1850-51.)
This claim is based on the record and thus was raised on direct appeal as Baker’s third
assignment of error which the Second District decided as follows:
[*P30] In his third assignment of error, Baker asserts that he was
denied the effective assistance of counsel because 1) counsel
lacked basic knowledge regarding the motion to suppress; 2)
counsel had ineffective communication with the jury and discussed
incorrect standards with the jury, and 3) counsel "frustrated the
trial court" throughout the proceedings.
[*P31] We review alleged instances of ineffective assistance of
trial counsel under the two prong analysis set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
and adopted by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases,
trial counsel is entitled to a strong presumption that his or her
conduct falls within the wide range of reasonable assistance.
Strickland, 466 U.S. at 688. To reverse a conviction based on
ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of
13

reasonableness and that his or her errors were serious enough to
create a reasonable probability that, but for the errors, the result of
the trial would have been different. Id.
[*P32] With respect to the motion to suppress, which concerned
the search warrant for Baker's residence, Baker identifies only one
example of counsel's alleged "lack of basic knowledge": a question
asked by defense counsel at the suppression hearing of a witness
from the Michigan State Police. Defense counsel asked the witness
to describe what information she had with respect to Baker's
involvement in the robbery and murder before seeking a search
warrant for his home. The State argued that the affidavit in support
of the search warrant was beyond the scope of the issues raised in
the motion to suppress and the "four corners" of the warrant, and
its objection to the question was sustained. According to Baker,
this question showed defense counsel's lack of understanding of
the holding in Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978). Counsel's next question, which
asked what information the witness had received from
Montgomery County pertaining to Baker's involvement in the
"incident," was allowed.
[*P33] Counsel's question did not, on its face, evince a lack of
understanding of the law with respect to search warrants or
motions to suppress. Moreover, there is no evidence in the
record to suggest that the facts of this case supported a challenge
to the affidavit underlying the search warrant. As such, there is no
basis to conclude that counsel's failure to file a more expansive
motion to suppress (based on Franks) demonstrated counsel's
ineffectiveness or met either prong of Strickland.
[*P34] Baker also asserts that counsel displayed a lack of
knowledge and "ineffective communication" during jury selection.
Although he cites pages of the transcript, Baker does not otherwise
present an argument as to how counsel acted ineffectively. On one
of the cited pages, defense counsel commented to the prospective
jurors about how they would want a defense attorney to provide
zealous representation "if your son was sitting there" as a
defendant; the court sustained the State's objection to the comment.
At another point, defense counsel asked prospective jurors whether
they thought they (the jurors) "should be accountable for the
conduct of two other individuals that are not you" or of whose
actions they were unaware. Again, the State's objection was
sustained in open court. These examples may demonstrate that
defense counsel was attempting, during voir dire, to suggest the
defense's theory of the case (that Baker was an unknowing
14

bystander to the robbery) and to ensure that prospective jurors
would be capable of separating the acts of an unknowing bystander
from criminal conduct of his companions; they do not demonstrate
that defense counsel appeared incompetent to the jury or that he
acted in a manner that prejudiced Baker in the eyes of the potential
jurors. The cited pages do not demonstrate representation that fell
below an objective standard of reasonableness.
[*P35] Baker also cites a section of the transcript wherein the
parties and the court were in chambers discussing challenges for
cause. After defense counsel stated that he did not have any
challenges for cause that had not already been addressed by the
State, the court raised a question as to Juror # 27, who "said he was
50 yards away when [the robbery] happened. He was there when
the investigation occurred" and "walked up." The judge asked,
"Does that cause any hair to raise on anybody's back?" Defense
counsel then asked that Juror # 27 be stricken for cause. Although
defense counsel had previously passed on objections to the juror,
the court "let [him] re-open" and challenge the juror for cause. The
court pointed out that neither party had questioned the juror during
voir dire on that issue, so that it would be more clear whether the
juror could be "fair and impartial." The court then overruled the
challenge for cause.
[*P36] We agree with the trial court that the record does not
establish that there was any basis to strike Juror # 27. Although
defense counsel might have questioned the juror more extensively
about his presence near the scene of the crime and his observations
there, defense counsel could have reasonably concluded that the
prospective juror's observations after the event were unlikely to
have had any bearing on Baker's guilt. This is especially true since
anything the juror might have seen occurred after the shootings,
and those events were not in dispute. There is no basis to conclude
that defense counsel was ineffective in failing to question Juror #
27 further or in failing to take the initiative to strike him.
[*P37] Finally, Baker contends, without any specific references
or allegations of prejudice, that trial counsel was ineffective
because he was "cantankerous" and "frustrat[ed] the trial court."
Having thoroughly reviewed the record, we find no support for this
assertion.
[*P38] Baker has not demonstrated that he was denied the
effective representation of counsel.
[*P39] The third assignment of error is overruled.
15

State v. Baker, 2014-Ohio-3163.
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). The Second District clearly decided this
constitutional claim on the merits and applied the correct federal standard derived from
Strickland v. Washington, 466 U.S. 668 (1984).

To prevail on an ineffective assistance of trial counsel claim, a habeas petitioner must
show that his counsel’s performance was deficient, measured by the professional standards
prevailing at the time of trial, and that he was prejudiced by the inept performance.
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 572 U.S. ___, ___
(2014), slip op. at 4.
When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ___, ___ (2013), slip op. at
9)(quoting Strickland v, Washington, 466 U.S. 668, 690 (1984);
internal quotation marks omitted). In such circumstances, federal

16

courts are to afford “both the state court and the defense attorney
the benefit of the doubt.” at ___ (slip op. at 1).
Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016)(per curiam; unanimous), reversing
Etherton v. Rivard, 800 F.3d 737 (6th Cir. 2015).
Baker has not shown the Second District’s application of Strickland was objectively
unreasonable. Going beyond what Judge Froelich said, it is not uncommon for defense counsel
to ask questions at suppression hearings that go beyond the technical scope of the hearing.
Sometimes the prosecutor will not object because he or she knows that the answer will show how
strong the state’s case is and thereby persuade a defense of the wisdom of pleading guilty.
Defense counsel cannot know whether there will be an objection until he asks the question. But
there is no deficient performance involved in asking for information that the defendant might not
be strictly entitled to.
As the Second District points out, Baker has offered no reason why a Franks v. Delaware
motion to suppress would have been successful, so it was not deficient performance to fail to
make one.
Baker also questions a number of voir dire questions counsel asked to which objections
were sustained. The questions which Baker thinks were problematic were questions designed
either to elicit sympathy for Baker or introduce the defendant’s theory of the case. Objections
were sustained, but asking the questions was not deficient performance. Attorneys are taught in
trial practice courses to attempt to do exactly those things. While this Court does not in any way
question the propriety of the trial judge’s rulings in sustaining the objections, the Court can
easily imagine trial judges who would have been more liberal. In any event, the questions were
well chosen to assist Baker’s case and trial counsel had to have some way to introduce the
defense theory of the case since Baker was not going to testify. In addition, the record shows no
17

evidence of prejudice at all.
Baker argued to the Second District as he argues here that trial counsel was
“cantankerous” and frustrated the trial judge. The Second District found no record basis for this
claim. State v. Baker, supra, ¶ 27. It is a common experience of trial judges that certain lawyers
get under their skin. It is a common experience of trial attorneys that some judges are more
prickly than others. These are ordinary incidents of trial experience and do not show either that
the lawyer was ineffective or that the judge was biased. See Liteky v. United States, 510 U.S.
540, 554-55 (1994).
Baker’s Second Ground for Relief is without merit and should be dismissed.

Ground Three: Ineffective Assistance of Trial Counsel

In his Third Ground for Relief, Baker complains of ineffective assistance of trial counsel
which has to be demonstrated by facts outside the appellate record and therefore were included
in his petition for post-conviction relief under Ohio Revised Code § 2953.21. In this claim he
emphasizes trial counsels’ failure to interview co-defendant Darren Taylor and to follow up on
Baker’s asserted 911 call to the Detroit police (Reply, ECF No. 12, PageID 1853-55).
The Second District considered this claim on Baker’s appeal from denial of his petition
for post-conviction relief. His sole assignment of error on appeal was that the petition had been
denied without an evidentiary hearing. In affirming the trial court’s dismissal of the petition,
Judge Froelich wrote for the Second District:
[*10] With respect to the testimony of Darren Taylor, Baker's
petition and its attachments suggest that letters and statements
made by Taylor after the crime supported Baker's contention that,
although he (Baker) was present at the robbery, he had not actively
18

participated in it. The statements Taylor made to his girlfriend
suggest confusion on Taylor's part about how the police had
connected Baker and his wife with the crime during their
investigation, and Taylor had given conflicting statements to the
police about who his accomplices had been. The petition asserts
that Baker instructed his attorney to speak with Taylor, who "could
clear up any wrong involvement of petitioner's behalf in this case"
by testifying that Baker "had no knowledge that [Taylor] and
Anthony McClain were going to Ohio to commit a Robbery
offense, let alone commit murder." The petition asserts that trial
counsel did not talk with or subpoena Taylor.
[*11] The trial court held that Baker's documentation in support
of this claim, which included his own affidavit, an unidentified
handwritten narrative, and various police reports, failed to establish
that Taylor was willing to testify during Baker's trial. The court
further noted that "Taylor had a history of lying when asked about
the events" surrounding the shooting, including a claim in his
initial interview with the police that Baker had not been with him.
Baker had admitted being at the pawn shop, and surveillance
footage also documented his presence. The court concluded that,
"even if Mr. Taylor had agreed to testify at [Baker's] trial, it is
unclear whether his testimony would have been truthful or whether
it would have had any effect on the jury." Further, the court found
that trial counsel's decision not to call Taylor, a co-defendant of
Baker who had been convicted of the same offenses before Baker's
trial, was a reasonable, strategic choice.
[*12] The evidence relied upon by Baker did not establish that
Taylor was willing to testify on Baker's behalf or that, if Taylor
had done so, his testimony would have reflected Baker's alleged
non-accomplice involvement in the crime or would have otherwise
been helpful to the defense. The trial court did not abuse its
discretion in rejecting this argument without a hearing.
[*13] With respect to the 911 call, Baker's petition alleged that he
had called 911 from McClain's cell phone as Taylor was dumping
McClain's body in an alley in Michigan. According to the petition,
Baker "had to hang up [when Taylor returned to the car,] fearing
for his life" if Taylor realized he had made such a call. Baker
asserted that he informed dispatch of the location of the body
before Taylor returned to the car, then hung up. Baker contends
that trial counsel was ineffective in failing to investigate or present
evidence about this 911 call.
[*14] Baker's petition did not include any evidence about the
19

nature or content of the 911 call. The court observed that Baker
merely alleged that counsel should have investigated the call more
thoroughly, but did not "specify what would have been discovered
by any additional investigation * * * [or] allege any additional
facts to suggest a more thorough investigation would have changed
the outcome of the trial." The trial court noted that evidence about
the call was presented at trial: testimony was presented that calls
were made to the police department from McClain's cell phone,
and that the calls originated near Baker's home. The court stated
that, because the phone calls came from near Baker's house, "it
appears that the jury viewed the phone calls as links between the
Defendant and the murders, rather than evidence of his innocence,"
and that trial counsel made a reasonable, strategic choice not to
focus on this evidence. The court did not abuse its discretion in
concluding that Baker's assertions and evidence regarding the 911
call did not warrant a hearing on his petition for postconviction
relief.
State v. Baker, 2015-Ohio-338, 2015 Ohio App LEXIS 315 (2nd Dist. Jan. 30, 2015).
As noted above with respect to Ground Two, a federal habeas court is required to defer to
a state court ruling on the merits of a constitutional claim unless it is contrary to or an objectively
unreasonable application of clearly established Supreme Court precedent.

On a claim of

ineffective assistance of trial counsel, deference is double, to wit, to the judgment of the trial
lawyer and that of the state courts.
This Court finds the Second District’s decision was not an objectively unreasonable
application of Strickland. With respect to the 911 call, Baker offers no corroboration of what he
alleges he said. Even if he had produced corroboration, it would hardly have been a magic bullet
for acquittal. By the time he, Taylor, and McClain’s body had arrived back in Detroit, Baker
knew at least one death had result from the incident and he had had several hours to think of
ways to try to extricate himself from it, one of which might be to tell Detroit police where the
body was.
Respecting the possibility Taylor would provide exonerating testimony, Baker produced

20

no evidence directly from Taylor that he would have testified for Baker. Taylor himself was
facing murder charges arising from the same incident.1 Taylor’s trial commenced April 25,
2013,2 and a verdict was returned May 2, 2013. However, Taylor appealed and there would be
no good reasons for him to waive his privilege against self-incrimination by discussing the case
with Baker’s lawyer or testifying at Baker’s trial. Baker’s attorney certainly could not as a
matter of professional ethics question Taylor without his attorney’s permission, and such
permission was unlikely to have been given.
This Court cannot review directly the decision of the Ohio courts not to hold an
evidentiary hearing on the post-conviction petition. There is no federal constitutional right to
such a hearing.
Ground Three should therefore be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that 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.

1

As of the date of this Report, Taylor is confined at the Lebanon Correctional Institution on a murder conviction
from Montgomery County. ( http://www.drc.state.oh.us/OffenderSearch/details.aspx?id=A685345&pg=x; visited
April 25, 2016).
2
Docket of Case No. 2011 CR 4313 (www.clerk.co.montgomery.oh.us; visited April 25, 2016).

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April 26, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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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