Patton v. Warden Warren Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability a nd 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. Objections to R&R due by 7/3/2017. Signed by Magistrate Judge Michael R. Merz on 6/19/2017. (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
DAURIN PATTON,
Petitioner,

:

- vs -

Case No. 3:17-cv-078
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

WARDEN,
Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits. Upon initial review of the Petition (ECF No. 1), the Court ordered the State to answer
the Petition and set a date twenty-one days after the return was filed for Petitioner to file a
reply/traverse (ECF No. 2). In compliance with the Order, the Attorney General has filed the
state court record (“SCR”, ECF No. 6) and a Return of Writ (ECF No. 7). The time within
which Petitioner was to have filed a reply has expired and no reply has been filed. The case is
therefore ripe for decision.

Procedural History

Petitioner was indicted by the Lucas County Grand Jury on December 6, 2011, on one
count of aggravated robbery (Ohio Revised Code § 2911.01(A)(1)), with a firearm specification
(Count 1); and two counts of aggravated murder (Ohio Revised Code § 2903.01(A) and (F)),
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each with a firearm specification (Counts 2 and 3) (ECF No. 6, State Court Record Exhibit 1,
PageID 33). The trial jury found him guilty as charged and sentenced to life imprisonment
without parole (SCR, ECF No. 6, PageID 84).
Patton appealed to the Ohio Sixth District Court of Appeals raising the following
assignments of error:
1. The trial court erred by permitting the State to play the video of
two alleged gang members standing with a semi-automatic “assault
style” rifle. Patton’s Constitutional right to Confront Witnesses
was violated and it was improper hearsay.
2. The trial court erred and abused its discretion through the
admission of the video, the Russian SKS 45 rifle, gang evidence
and statements made by Serrano and her son were more prejudicial
than probative. The video, rifle and other gang evidence was not
relevant.
3. The State failed to properly authenticate the You Tube video in
violation of Evid.R. 901(A). As such, Patton was denied his right
to a fair trial.
4. The trial court erred by allowing the prosecutor to engage in
improper impeachment of Patton’s alibi witness including an
unprosecuted event while she was in junior high school and an
allegation in a police report, neither of which resulted in a
conviction.
5. The verdicts were against the manifest weight of the evidence.
6. The trial court erred by not granting Patton’s motion to suppress
the out-of-court identifications made of Patton from photo arrays.
The identifications were made contrary to Ohio statutory law and
in violation of his right to due process of law.
7. Patton did not receive the effective assistance of counsel to
which he has a Constitutional right.
8. If this Court agrees with certain assignments of error and holds
in favor of Patton, then the state’s case must fail due to insufficient
evidence.

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9. The prosecutor engaged in a pattern of misconduct that was
intentionally designed to prejudice the jury in order to obtain a
conviction at all costs.
(SCR, ECF No. 6, PageID 91.) The Sixth District affirmed the convictions and sentence. State v.
Patton, 2015-Ohio-1866, 2015 Ohio App. LEXIS 1783 (6th Dist. May 15, 2015), appellate
jurisdiction declined, 144 Ohio St. 3d 1426 (2015). The instant habeas corpus petition followed
on March 6, 2017 (ECF No. 1).
Patton pleads the following grounds for relief:
GROUND ONE: Violation of the Confrontation clause and
improper hearsay in violation of the United States Constitution
Fifth Amendment.
Supporting Facts: The trial court erred by permitting the State to
play a video with two alleged gang members with semi-automatic
“assault style” rifles [SKS 47 rifle] and other gang violence not
relevant to the case.
GROUND TWO: The trial court erred by allowing the prosecutor
to engage in improper impeachment of Petitioner’s alibi witness
under Evid. R. 608(B), including an unprosecuted event while she
was in junior high school and an allegation in a police report,
neither of which resulted in a conviction, in violation of the United
States Constitution.
Supporting Facts: The trial court allowed the prosecution to
impeach Petitioner’s alibi witness with allegation in a police report
from high school which did not result in a conviction.
GROUND THREE: The jury verdicts were against the manifest
weight of the evidence.
Supporting Facts: The jury verdicts did not support the evidence
presented in this case.
GROUND FOUR: The trial court erred by not granting
Petitioner’s motion to suppress the out-of-court identification of
Petitioner made from photo arrays, which were contrary to law and
in violation of the due process clause of the United States
Constitution.

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Supporting Facts: The trial court violated Petitioner’s right to a
fair trial by allowing out-of-court photo identifications of
Petitioner.
Id. at PageID 4, 6, 7, and 9.

Analysis

Grounds One: Confrontation Clause

In his First Ground for Relief, Patton asserts the trial court violated his rights under the
Confrontation Clause by permitting the prosecutor to play a video with two alleged gang
members with semi-automatic rifles and other gang violence not relevant to the case.
The Warden asserts Ground One is barred by Patton’s procedural defaults in presenting
this claim to the Ohio courts, both by making no contemporaneous objections in the trial court
and then by failing to appeal to the Ohio Supreme Court from an adverse appellate ruling on this
claim (Return, ECF No. 7, PageID 2609-13).
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
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rights 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 claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. at
485; Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to
present an issue to the state supreme court on discretionary review constitutes procedural default.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).
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.

5

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 Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Ohio has a relevant procedural rule that requires making an objection to trial court error
at the time it occurs. State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see
also State v. Mason, 82 Ohio St. 3d 144, 162 (1998). The Sixth Circuit has repeatedly held this
rule is an adequate and independent state ground for decision. Wogenstahl v. Mitchell, 668 F.3d
307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v.
Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.
2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th

6

Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d
239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac,
456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000);
Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522
(6th Cir.), cert. denied, 562 U.S. 876 (2010).
The Sixth District Court of Appeals actually enforced this rule against Petitioner. It held:
[*P36] Under assignment of error No 1, appellant argues that the
trial court erred by permitting the state to play a video of two
alleged gang members with a semi-automatic rifle at trial.
Appellant contends that admission of the video violated his Sixth
Amendment right to confront witnesses and that the video also
constituted inadmissible hearsay.
[*P37] The video is less than three minutes in length and was
uploaded to YouTube in December 2007. It depicts two young
men with an SKS style assault rifle with two ammunition magazine
clips. The state used the video at trial as evidence that appellant, as
a member of the gang Bagdad Boyz, had access to weapons of the
type used to kill Timothy Blair and Veronica Serrano.
[*P38] Appellant raises objections to the video on confrontation
and hearsay grounds for the first time on appeal. Prior to trial,
appellant objected to evidence of gang related activity in a motion
in limine on the grounds that the evidence was irrelevant and more
prejudicial than probative. At trial counsel renewed the objection
on the same grounds: "Objection, Judge, based on prior objection."
Accordingly, appellant waived all but plain error on claimed error
challenging the admissibility of the evidence on confrontation and
hearsay grounds. See State v. Thompson, 141 Ohio St. 3d 254,
2014-Ohio-4751, 23 N.E.3d 1096, ¶ 174.
[*P39] The Ohio Supreme Court has identified the standard for
noticing plain error:
First, there must be an error, i.e., a deviation from the
legal rule. * * * Second, the error must be plain. To be
"plain" within the meaning of Crim.R. 52(B), an error
must be an "obvious" defect in the trial proceedings. * * *
Third, the error must have affected "substantial rights."
We have interpreted this aspect of the rule to mean that
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the trial court's error must have affected the outcome of
the trial.
State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d
891, ¶ 11, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio4642, 873 N.E.2d 306, ¶ 16 and State v. Barnes, 94 Ohio St.3d 21,
27, 2002 Ohio 68, 759 N.E.2d 1240 (2002).

[*P40] Even where these three prongs are met, notice of plain error
is taken "with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." Eafford at ¶
12, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), paragraph three of the syllabus
Confrontation Clause
[*P41] The Confrontation Clause of the Sixth Amendment to the
United States Constitution provides: "In all criminal prosecutions,
the accused shall enjoy the right * * * to be confronted with the
witnesses against him." In "Crawford v. Washington, 541 U.S. 36,
53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
Supreme Court held that the Confrontation Clause bars
"testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had a prior
opportunity for cross-examination."
[*P42] The state contends that the YouTube video was admitted
without sound and, therefore, the court's ruling did not admit any
testimonial statement at trial. The record discloses, however, that
statements from the video were recited at trial.
[*P43] At the hearing on appellant's motion to suppress the video,
the trial court originally ordered that the video could be played at
trial but excluded all audio, except for references to Bagdad and
Bagdad Boyz memberships, and references to the weapon involved
in the video.
[*P44] At trial, the court approved a different procedure to achieve
the same result. The state played the video portion of the
recording, without any audio. The state was permitted to question
Office Doug Allen of the Toledo Police Department's Gang Task
Force concerning statements made in the video within the limited
areas of content previously set by the court. The court permitted
this procedure for reasons of "expediency" as a means to enforce

8

the court's limitations on use of audio from the without requiring
technical editing of the recording.
[*P45] Officer Doug Allen testified that prior to trial he had heard
the audio portion of the recording. The officer testified that the two
men in the video were doing a rap. The officer testified to the
names of the two men in the video and identified them as gang
members of the Bagdad Boyz gang. Officer Allen testified further
that the individuals in the video identified themselves as "Bagdad"
and that they were from the "North." The state also questioned the
officer as to statements made in the video about how many of the
particular type weapon they had:
Q. And with respect to that particular weapon, do they
indicate how many of these type weapons that they have?
A. They make reference at one point in here that they
have a few of them.

[*P46] In our view, the fact that the state was permitted to use
Officer Allen to voice statements made in the video, as a manner
of convenience to avoid editing problems at trial, did not remove
the testimonial nature of the court's ruling. The court's ruling
permitted introduction into evidence of the out of court statements
of the young men, voiced by Officer Allen, that the Bagdad Boyz
gang possessed a few SKS automatic rifles at the time of the video.
As neither of the young men testified at trial, admitting their out of
court statements into evidence at trial denied appellant his Sixth
Amendment to confront witnesses against him and constituted an
obvious defect in trial proceedings.
Hearsay
[*P47] "To constitute hearsay, two elements are needed. First,
there must be an out-of-court statement. Second, the statement
must be offered to prove the truth of the matter asserted. If either
element is not present, the statement is not 'hearsay.'" State v.
Maurer, 15 Ohio St.3d 239, 262, 15 Ohio B. 379, 473 N.E.2d 768
(1984); see Evid.R. 801(C). The statements by the two young men
were out of court statements and the statements were admitted to
prove the truth of the matter asserted, namely that the Bagdad
Boyz gang possessed a few automatic rifles of the type shown in
the video. Accordingly, admitting the statements into evidence at
trial was an obvious legal error, as the statements constitute
hearsay. Evid.R. 802.
9

[*P48] We conclude, however, that these errors did not rise to the
level of plain error, as the admission of the YouTube video did not
affect the outcome of the trial. As more fully discussed in our
consideration of whether the verdicts were against the manifest
weight of the evidence, we conclude that the evidence of
appellant's guilt at trial was overwhelming. We find assignment of
error No. 1 not well-taken.
State v. Patton, supra.
A state court plain error holding is an enforcement of a procedural default, not a waiver
of it. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478,
511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell,
431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v.
Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.
2000)(plain error review does not constitute a waiver of procedural default); accord, Mason v.
Mitchell, 320 F.3d 604 (6th Cir. 2003).
Thus the Sixth District enforced the contemporaneous objection rule against Patton and
he has not shown any cause or prejudice to excuse that default.
Secondly, the Warden argues Ground One is procedurally defaulted because the adverse
appellate ruling was not appealed to the Ohio Supreme Court. In order to avoid procedurally
defaulting a habeas ground for relief, a petitioner must present it at every level of the state court
system, including the state supreme court. O’Sullivan, supra. Patton’s sole proposition of law on
appeal to the Ohio Supreme Court was
Trial courts should suppress eyewitness identifications when the
police intentionally refuse to respect the safeguards set forth in
R.C. 2933.83. In the alternative, juries should be instructed that the
method presented in R.C. 2933.83(A) is required, but that the
police did not comply. R.C. 2933.83; Neil v. Biggers, 409 U.S.
188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
10

This proposition of law does not include the claim made in Ground One and that claim is
therefore procedurally defaulted on this second basis as well as on the contemporaneous
objection ground.

Ground Two: Prosecutorial Misconduct

In his Second Ground for Relief, Patton claims he was denied a fair trial when the
prosecutor was permitted to improperly cross-examine Patton’s alibi witness. The Warden
asserts this Ground is also procedurally defaulted because it was not fairly presented to the Ohio
courts as a federal constitutional claim and the adverse appellate ruling was not appealed
(Return, ECF No. 7, PageID 2613-14).
To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way which provides them with an opportunity
to remedy the asserted constitutional violation, including presenting both the legal and factual
basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986
F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds
by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner
v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).
In determining whether a petitioner "fairly presented" a federal
constitutional claim to the state courts, we consider whether: 1) the
petitioner phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a
denial of the specific constitutional right in question; 2) the
petitioner relied upon federal cases employing the constitutional
analysis in question; 3) the petitioner relied upon state cases
11

employing the federal constitutional analysis in question; or 4) the
petitioner alleged "facts well within the mainstream of [the
pertinent] constitutional law."
Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004), citing McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971).
The Sixth District discussed this issue purely in terms of Ohio R. Evid. 608. It cited no
federal case law as involved. In arguing Assignment of Error number four, Patton’s appellate
counsel did not argue in terms of any constitutional claim (Appellant’s Briefs, SCR, ECF No. 6,
PageID 140-46). Although she repeatedly accused the prosecutor of misconduct, it was always
in terms of his violation of the Ohio Evidence rule.

Thus no claim of unconstitutional

prosecutorial misconduct was made to the Sixth District.
Even if this Court were to read the fourth assignment of error as making a constitutional
claim, that claim was procedurally defaulted, as was the claim in Ground One, by failing to
include it on appeal to the Ohio Supreme Court.

Ground Three: Manifest Weight of the Evidence

To the extent this Ground is worded as a manifest weight claim, it is not cognizable in
federal habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986).
In his “Supporting Facts” for this Ground, Patton argues the evidence does not support
the jury verdicts. Because he is proceeding pro se, Patton is entitled to a liberal construction of
his pleading, so this Ground could be read as claiming the evidence was insufficient. That does
state a claim under the Constitution. Jackson v. Virginia, 443 U.S. 307 (1979). A sufficiency of
the evidence claim was presented to the Sixth District as Assignment of Error No. 8. The Sixth

12

District decided that claim as follows:
Sufficiency of the Evidence
[*P136] Under Assignment of Error No. 8, appellant contends that
his convictions are not supported by sufficient evidence. Appellant
was convicted of one count of aggravated robbery, a violation of
R.C. 2911.01(A)(1), and two counts of aggravated murder, a
violation of R.C. 2903.01(A) and (F). Both aggravated murder
convictions included accompanying firearm specifications under
R.C. 2941.145, which the court merged at sentencing.
[*P137] Sufficiency of the evidence is "'that legal standard which
is applied to determine whether the case may go to the jury or
whether the evidence is legally sufficient to support a jury verdict
as a matter of law."' State v. Thompkins, 78 Ohio St.3d at 386, 678
N.E.2d 541, quoting Black's Law Dictionary 1433 (6 Ed.1990). In
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), the Ohio
Supreme Court outlined the analysis required to apply this
standard:
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. ( Jackson v. Virginia [1979], 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)
Id. at paragraph two of the syllabus.
[*P138] We consider the convictions for aggravated murder first.
R.C. 2903.01 provides in pertinent part:
(A) No person shall purposely, and with prior calculation
and design, cause the death of another or the unlawful
termination
of
another's
pregnancy.
***
(F) Whoever violates this section is guilty of aggravated

13

murder, and shall be punished as provided in section
2929.02 of the Revised Code.

[*P139] The aggravated murder counts included R.C. 2941.145
firearm specifications. The firearm specification requires evidence
"that the offender had a firearm on or about the offender's person
or under the offender's control while committing the offense and
displayed the firearm, brandished the firearm, indicated that the
offender possessed the firearm, or used it to facilitate the offense."
R.C. 2941.145(A).
[*P140] Multiple witnesses testified at trial concerning the identity
and conduct of a man dressed all in black outside on Page Street on
the night of November 15, 2011. The evidence was that Veronica
Serrano and her son, Timothy Blair, were shot by a firearm outside
their residence at 1357 Page Street that night and died as a result of
injuries from the shootings.
[*P141] Lawrence Elliott testified he saw the shootings and
identified appellant as the shooter at trial. Troy Minor, a neighbor
living across the street, testified that he saw the same man in black
argue with Veronica Serrano outside 1357 Page Street that night,
saw the man leave when police approached, and saw him return
later and shoot both Serrano and her son, Timothy Blair there.
[*P142] Multiple witnesses testified that appellant went by a street
name of "38." The evidence at trial was that Veronica Serrano
made a dying declaration that the shooter was "38." The evidence
at trial included a statement by Timothy Blair, an excited utterance
made after hearing a threat to kill his brother Gary. Timothy called
out "No, no, no, no, 38. It's my brother. It's all cool." The shootings
followed. Jerry Hamblin, the wife of Troy Minor, testified that the
man arguing with Veronica Serrano across the street that night
identified himself. Hamblin testified that the man said: "I'm 38,
mother-fucker, while he's out there with a shotgun."
[*P143] Tonia Atwell, who lived up the street at 1331 Page,
testified that she knew appellant, that she spoke to him, and that he
was dressed all in black that night. Atwell also testified that
appellant threatened to kill Veronica Serrano if she called police.
Other witnesses at trial also testified to a threat by appellant to kill
Serrano if she called police.
[*P144] Viewing the evidence at trial in a light most favorable to
the state, we conclude that it was reasonable for the trier of fact to
14

conclude beyond a reasonable doubt that appellant purposely, and
with prior calculation and design, caused the deaths of Veronica
Serrano and Timothy Blair and used a firearm to commit the
offenses. We conclude that there was sufficient evidence at trial to
convict appellant of two counts of aggravated murder, violations of
R.C. 2903.01(A) and (F) and also find the accompanying firearm
specifications under R.C. 2941.145.
[*P145] With respect to the conviction of aggravated robbery, a
violation of R.C. 2911.01(A)(1), the statute provides:
2911.01 Aggravated Robbery
(A) No person, in attempting or committing a theft
offense, as defined in section 2913.01 of the Revised
Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's
person or under the offender's control and either display
the weapon, brandish it, indicate that the offender
possesses it, or use it;

[*P146] Lawrence Elliott testified that appellant took a mostly
empty bottle of Jim Beam liquor from him at gunpoint on
November 11, 2011. Elliott testified that appellant pointed a
shotgun at his chest.
[*P147] Sara King and Susanna Degler testified that they stumbled
on the incident as Sara King dropped Susanna Degler off at home
after work. Degler testified at trial that three men were in the street
as they pulled up — Elliott, Gary Blair, and a man dressed all in
black with a shotgun pointed at Elliot's chest. Sara King saw one of
the men give a bottle of alcohol to a man dressed all in black with
a gun in his hand. King testified that the gun looked like a shotgun
and that the gunman put the bottle in his coat.
[*P148] Viewing the evidence at trial in a light most favorable to
the state, we conclude that it was reasonable for the trier of fact to
conclude beyond a reasonable doubt that appellant in committing a
theft offense had a deadly weapon on or about his person and
displayed the weapon or brandished it in committing the offense.
We conclude that there was sufficient evidence at trial to convict
appellant of the offense of aggravated robbery, a violation of R.C.
2911.01(A)(1).
15

[*P149] We find assignment of error No. 8 not well-taken.

State v. Patton, supra.
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
prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193 L. Ed.
2d 639 (2016).
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,
16

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, 567 U.S. 37, 43 (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).
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."
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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. 650, 651, (2012)(per curiam); Parker, 567 U.S. at 43 (per
curiam).
Construing Ground Three as a claim of insufficient evidence, it is not well-taken. The
Sixth District’s opinion recites evidence that is sufficient to convict Patton of all three offenses in
question.
Aside from its failure on the merits, Ground Three also fails because it was not included
in Patton’s appeal to the Ohio Supreme Court and is therefore procedurally defaulted.

Ground Four: Improper Out-of-Court Identification

In his Fourth Ground for Relief, Patton asserts the trial court committed prejudicial
constitutional error by admitting in evidence out-of-court identifications of him.

Patton

presented this claim to the Sixth District as his Sixth Assignment of Error as both a due process
claim and a claim of violation of Ohio Revised Code § 2933.83. The court decided the claim as
follows:
[*P15] We consider appellant's assignments of error out of turn
and consider assignment of error No. 6 first. In the assignment of
error, appellant contends that the trial court erred in denying his
motion to suppress out of court identifications made of him by
photo arrays. Appellant contends that the ruling constituted error
on two grounds: first that the photo identification procedure used
did not comply with Ohio statutory requirements under R.C.
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2933.83 and second, use of the out of court identifications denied
appellant due process of law.
[*P16] Appellate review of a trial court's ruling on a motion to
suppress evidence presents mixed questions of law and fact. State
v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. The Ohio Supreme Court has identified our standard of
review:
[A]n appellate court must accept the trial court's findings
of fact if they are supported by competent, credible
evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1
OBR 57, 437 N.E.2d 583. Accepting these facts as true,
the appellate court must then independently determine,
without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.
State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539.
Id.
Photo Identification Issues
[*P17] The hearing on the motion to suppress proceeded on
November 16, 2012. At the hearing, the state advised the trial court
that it would not use evidence of the photo identification of the
appellant by Susanne Degler at trial. Accordingly, the motion to
suppress was limited to consideration of the admissibility photo
identifications of appellant by Gary Blair, Lawrence Elliott and
Anthony Blair prior to trial.
[*P18] The state used a six-pack array to present photographs for
identification rather than using a folder system identification
procedure. [FN 1 A six pack array presents six photographs on one
sheet of paper. The folder system uses individual photographs
placed in separate folders in a procedure set forth in R.C.
2933.83(A)(6).] Appellant argues that the folder system is the
preferred system under R.C. 2933.83 and that the trial court erred
in failing to suppress identifications by Gary Blair, Lawrence
Elliott and Anthony Blair from six-pack arrays.

[*P19] The state argues that R.C. 2933.83 does not require use of a
folder system rather than six pack array. We agree. This court has
held that R.C. 2933.83 does not require use of the folder system.
State v. Winters, 6th Dist. Lucas No. L-12-1041, 2013-Ohio-2370,
¶ 42; accord State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013Ohio-3722, ¶ 77. Additionally, noncompliance with R.C. 2933.83
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alone does not provide an independent ground to suppress. State v.
Johnson, 6th Dist. Lucas No. L-13-1032, 2014-Ohio-4339, ¶ 11,
13; State v. Henry, 6th Dist. Lucas No. L-11-1157, 2012-Ohio5552, ¶ 46.
[*P20] R.C. 2933.83(C)(3) directs that where evidence of a failure
to comply with R.C. 2933.83 "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." The trial court referred to
the folder system as the sequential presentation method of photo
arrays in its jury instructions and instructed the jury:
The sequential presentation method uses single photos to
be viewed by the witness one at a time.
The six-pack array method displays six photographs at the
same time. The law prefers the utilization of the
sequential method. Utilization of the six-pack method in
and of itself is not impermissible.
The fact that the sequential method was not utilized is a
matter which you may properly consider when weighing
the reliability and the weights to be given the testimony of
any identification which was used in whole or in part
from a photo array.
[*P21] After the enactment of R.C. 2933.83, the overriding
analysis on motions to suppress photo identifications remains
whether the identification procedure was "impermissibly
suggestive." Johnson at ¶ 13; Henry at ¶ 46; see Neil v. Biggers,
409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). "[W]hen a
witness has been confronted with a suspect before trial, due
process requires a court to suppress * * * identification of the
suspect if the confrontation was unnecessarily suggestive of the
suspect's guilt and the identification was unreliable under all the
circumstances." State v. Waddy, 63 Ohio St.3d 424, 438, 588
N.E.2d 819 (1992), superseded by constitutional amendment on
other grounds, citing Neil v. Biggers and Manson v. Brathwaite,
432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
[*P22] In Waddy, the Ohio Supreme Court identified the two-step
analysis. "Under Neil's two-pronged test, the first question is
whether the identification procedure was unnecessarily
suggestive." Waddy at 438. The second "is whether, under all the
circumstances, the identification was reliable, i.e., whether
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suggestive procedures created 'a very substantial likelihood of
irreparable misidentification." Id. at 439, citing Simmons v. United
States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
The court also detailed the five Neil v. Biggers factors to consider
in determining whether the identification was reliable:
Key factors are the witness's opportunity to view (in the
case of a voice identification, to hear) the defendant
during the crime, the witness's degree of attention, the
accuracy of the witness's prior description of the suspect,
the witness's certainty, and the time elapsed between the
crime and the identification.
Neil, 409 U.S. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411.
Waddy at 439.

[*P23] Toledo police used three separate arrays in conducting out
of court photo identifications in this case, lineups 22602A,
22603B, and 22625. Lineups 22602A and 22603B both used a July
3, 2011 photo of appellant, but with appellant's photo placed in
different locations on the sheet. Lineup 22625 used a November
28, 2011 photo of appellant.
[*P24] Gary Blair and Lawrence Elliott were both presented lineup
22602A on November 26, 2011. Neither identified a suspect. Blair
said it could be the individual in photos 4, 5, or 6. Elliott said it
was between 5 and 6. Appellant was depicted in photo 5. On that
date, Anthony Blair identified appellant from a different array,
using lineup 22603B.
[*P25] Subsequently both Gary Blair and Elliott were presented
with an array different from the original array. On November 28,
2011, Lawrence Elliott identified appellant as the suspect in array
22603B. On December 2, 2011, Gary Blair identified appellant as
the suspect in array 22625.
[*P26] Appellant objects to use of the 22625 array in Gary Blair's
identification of him. He argues that persons appellant identified as
potential suspects in the first array (22602A) were not included in
the 22625 array. The state responds that the 22625 array depicts a
different photograph of appellant than used in the 22602A array
and appears with longer hair and more facial hair in his
photograph. The state argues that use of the array was appropriate
as photographs of other individuals where chosen to depict
similarity to appellant's changed appearance.
21

[*P27] Detective Robert Schroeder prepared all three arrays.
Detective Schroeder testified that that appellant's appearance
changed markedly between July and November, 2011. The second
photo array used a more current photo of appellant with longer hair
and more facial hair.
[*P28] Schroeder testified that he used a computer program to
search a database of photographs to secure a block of photographs
of men who looked similar to the photographs of appellant for the
arrays. The computer program provided a block of 50 similar
photographs from which Schroeder chose photographs for use with
appellant's photograph for the arrays.
[*P29] At the hearing on the motion to suppress, the trial court
conducted a detailed review of the photographs used in the photo
arrays. It concluded that the arrays included photographs of
African-American men of similar age. The backgrounds and
shading of the photographs were similar. The men had the same
range of complexion, were of similar build, and had generally
similar hairstyles and facial hair. None of the photographs depicted
distinguishing features. All had fuller lips. The court concluded:
"the Court makes the factual finding that here is nothing about the
photos selected and the photos that comprise the other individuals
that were with Mr. Patton in those photo arrays to be unduly
suggestive." We find competent, credible evidence in the record
supports that conclusion.
[*P30] Appellant also argues that it was possible that Gary Blair
and his brother may have interacted concerning the arrays either at
the residence or at the police department prior to the photo
identifications conducted on December 2, 2011. However there is
no evidence to support that contention. Furthermore, Anthony
Blair had previously identified appellant in a photo identification
conducted on November 26, 2011. The record reflects that on
December 2, 2011, Gary Blair proceeded first and identified
appellant's photograph from a different array than viewed by
Anthony on November 26.
[*P31] Appellant argues that the trial court erred in overruling the
motion to suppress because the photo identifications of him by
Gary Blair and Elliott were unreliable. Appellant argues both were
intoxicated at the time of the events on November 25, 2011, and
both gave inconsistent statements and lied to police. Neither
identified appellant from the first array. Appellant argues that it
was dark out and the perpetrator wore a hoodie, obscuring his face.
22

[*P32] Although the crimes occurred at night, Page Street has
street lights. Both Gary Blair and Lawrence Elliott were in close,
direct contact with the offender. Both observed the offender in
close proximity, threatening them with a shotgun. Blair testified
that he was in reach of the gun and attempted to grab it. Witnesses
testified that Elliott stood in the street as the gunman pointed the
shotgun at his chest. Elliott testified he saw the gunman shoot the
victims. These circumstances are of the type that would focus a
high degree of attention of the witnesses on the gunman.
[*P33] While neither identified appellant when first presented a
photo array for identification, they both did at the second. The
crime occurred on November 25, 2011 and the identifications
occurred within a few days. Elliott identified appellant on
November 28, 2011, with "no doubt." Gary Blair identified
appellant on December 2, 2011. Both also made in court
identifications of appellant.
[*P34] Considering all the circumstances including the Neil v.
Biggers reliability factors, we conclude that the photo
identifications were not impermissibly suggestive and that the
identifications were sufficiently reliable to permit admission of
evidence of the identifications at trial consistent with due process
of law.
[*P35] We find assignment of error No. 6 not well-taken.
State v. Patton, supra.
Patton preserved this claim for merits review in habeas by presenting it as his sole
proposition of law on appeal to the Ohio Supreme Court. This Court cannot, however, review
the state law portion of the claim.
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, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,

23

693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The Magistrate Judge concludes the Sixth District’s decision is a reasonable application
of the relevant Supreme Court precedent. It found that the trial court had properly considered the
factors required by Neil v. Biggers, supra, and had made detailed findings of fact in support of its
conclusion that the photo arrays were not unduly suggestive. Whether a pre-trial identification
procedure is unduly suggestive is a mixed question of law and fact. Here both the trial court and
the Sixth District applied the correct federal standard to the underlying facts as they found them
after careful review of the evidence. Those findings are entitled to deference from this Court,
particularly in the absence of any argument to the contrary.

Conclusion

Grounds One, Two, and Three are procedurally defaulted on the bases given above.
Ground Four is without merit because the Sixth District’s conclusion on the constitutional claim
that is part of Ground Four is neither contrary to nor an objectively unreasonable application of
clearly established United States Supreme Court precedent. Therefore the Magistrate Judge
respectfully recommends 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

24

be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

June 19, 2017.
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 mail. .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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