# Smith v. Eppinger

> District Court, N.D. Ohio · June 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10372139

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** June 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10372139

## How later opinions describe it (automated extraction)

- noting that the Biggers factors are not particularly helpful where there is prior acquaintance
- holding that prior acquaintance increases the likelihood of an accurate and reliable identification but does not render the Biggers analysis moot

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID M. SMITH, ) Case No. 5:20-cv-00438
)
Petitioner, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge Darrell Clay
)
LASHANN EPPINGER, Warden, )
)
Respondent. )
)

OPINION AND ORDER
Petitioner David Smith filed a petition for a writ of habeas corpus asserting
seven grounds for relief. (ECF No. 1, PageID #6–15.) The Magistrate Judge
recommends that the Court dismiss the petition in its entirety and grant a certificate
of appealability as to ground two. (ECF No. 26, PageID #3000.) Respondent objects
to the recommendation for a certificate of appealability on that ground. (ECF No. 28.)
For the reasons that follow, the Court OVERRULES Respondent’s objection and
ADOPTS the Magistrate Judge’s report and recommendation. The Court GRANTS
a certificate of appealability under 28 U.S.C. § 2253(c) as to ground two of the petition.
STATEMENT OF FACTS
A. The Attack on Quortney Tolliver and Initial Investigation
On October 16, 2015, Quortney Tolliver was attacked in her mobile home in
Portage County, Ohio. (ECF No. 7-1, ¶ 12, PageID #399.) See also State v. Smith,
No. 2016-P-0074, 2018-Ohio-4799, ¶ 12 (Ohio Ct. App.). She sustained severe injuries
including skull and facial fractures. (ECF No. 7-1, ¶ 18, PageID #400.) At trial,
Tolliver testified that she opened her front door, turned to get her shoes, then “felt a
hit.” (Id., ¶ 57, PageID #409.) Tolliver lost consciousness but regained it long enough
to exit her home, at which point a neighbor saw her and called the authorities. (Id.,

¶¶ 57 & 64, PageID #409 & #411–12.) When law enforcement arrived, Tolliver’s home
was covered in blood, and there was a hammer in the kitchen. (Id., ¶ 65, PageID
#412.) For approximately two weeks after the incident, Tolliver was hospitalized and
in a medically induced coma. (Id., ¶ 18, PageID #400.)
During her hospital stay, law enforcement presented Tolliver with several
photo arrays of potential suspects, but she was unable to identify any of the twenty-

four individuals in the photos as her attacker. (Id., ¶ 19, PageID #400.) At the time,
she was unable to speak due to her injuries, but was able to communicate by writing
and shaking her head. (Id.) Tolliver asked the detectives who did this to her, and
about her pending criminal charges for drug trafficking. (Id.) In November 2015, she
told detectives she did not remember the attack. (Id.)
B. Alleged Suggestive Identification of Mr. Smith
In December 2015, a law enforcement officer assigned to the case, Lt. Greg

Johnson, visited Tolliver at the nursing facility where she was recovering. (Id., ¶ 20,
PageID #400.) Tolliver’s mother was present during the visit, which was recorded.
(Id., ¶ 20, PageID #400–01.) Upon entering the room, Lt. Johnson introduced himself
and stated, “I think I found out who did this to you.” (Id., ¶ 21, PageID #401.) He
showed Tolliver a photo of Petitioner; at first she did not recognize him and asked
who he was. (Id.) Then, she remembered that he had given her a ride to Cleveland
in the past. (Id.)
Lt. Johnson proceeded to tell Tolliver that Mr. Smith had “nothing good” to say
about her, and that he had discovered text messages exchanged between them on the
day she was attacked. (Id., ¶ 22, PageID #401.) Then, Tolliver remembered that

Mr. Smith was supposed to give her another ride to Cleveland the day of her attack.
(Id.) However, she could not recall the day clearly. (Id.) Lt. Johnson answered
questions from Tolliver and her mother and told them that Mr. Smith was not in
custody yet. (Id., ¶ 23, PageID #401.) Lt. Johnson told Tolliver that Mr. Smith was
“hoping” she was dead because otherwise he would be “in trouble” and that Mr. Smith
was “cold hearted.” (Id., ¶¶ 23–24, PageID #401.) Lt. Johnson also told Tolliver and

her mother that Mr. Smith had a “long” criminal history, including a period of
incarceration for attempted murder. (Id., ¶ 24, PageID #401.)
Then, Tolliver explained how she knew Mr. Smith. (Id., ¶ 25, PageID #401.)
They met a few times through a mutual friend, and Tolliver once paid Mr. Smith to
drive her to Cleveland. (Id.) Tolliver remembered exchanging text messages with
Mr. Smith the night before the attack but denied that he had ever entered her home.
(Id.)

However, Tolliver described a dream she had while unconscious that included
Mr. Smith at her home. (Id., ¶ 26, PageID #402.) She explained that in the dream
Mr. Smith was at her trailer, and she was hit with a hammer before falling on her
friend’s porch. (Id.) She explained that she could not say for sure whether it was a
dream or a memory. (Id.)
Also, Lt. Johnson told Tolliver that Mr. Smith’s DNA was found in her
bathroom sink mixed with her blood, and that he had “left her for dead.” (Id., ¶ 27,
PageID #402.) Lt. Johnson advised Tolliver and her mother not to speak about

Mr. Smith with anyone. (Id.)
C. Tolliver’s Recollection
In February 2016, Lt. Johnson met with Tolliver again. (Id., ¶ 28, PageID
#402.) The conversation was recorded. (Id.) During this meeting, Tolliver was able
to recall and explain what happened the day of her attack. (Id.) She explained that
she was expecting Mr. Smith at her home because he agreed to give her a ride, and
after she opened the door for him and turned to put her shoes on, he swung at her

with a hammer. (Id., ¶ 30, PageID #402.) Tolliver explained that she was unable to
remember these details before and stated that “in my coma I was having dreams, so
many dreams, and that was one of them.” (Id., ¶ 31, PageID #403.) Tolliver told
Lt. Johnson that she was certain this recollection was not a dream. (Id., ¶ 32, PageID
#403.)
D. Motion to Suppress and Trial
Before trial, Mr. Smith moved to suppress Tolliver’s identification of him as

her assailant on the grounds that Lt. Johnson’s identification methods were unduly
suggestive and unreliable. (Id., PageID #109.) The State trial court held a hearing
on the motion. At the hearing, Lt. Johnson testified that Mr. Smith first became a
suspect in the investigation when he discovered eighty text messages and/or phone
calls between Mr. Smith and Tolliver during the twenty-four hours preceding the
attack. (Id., ¶ 33, PageID #403.)
Tolliver testified that she initially pretended not to know Mr. Smith when
Lt. Johnson showed her his photo in December 2015 because she knew him through
her drug trafficking activities, and she did not want her mom, who was present, to

know she was still selling drugs. (Id., ¶ 34, PageID #403.) Also, Tolliver testified
that she remembered that Mr. Smith had attacked her before Lt. Johnson showed
her his photo. (Id.)
On August 4, 2016, the State trial court denied Petitioner’s motion to suppress.
(Id., PageID #165–67.) The trial court denied the motion because it found the
procedure Lt. Johnson used to obtain Tolliver’s identification of Mr. Smith was not

unduly suggestive under the circumstances. (Id., PageID #166.) Specifically, the trial
court determined that because Lt. Johnson knew that Tolliver and Mr. Smith were
recently acquainted and had communicated frequently in the hours leading up to the
attack, “it would be logical for an investigator to approach the potential identification
of a suspect known to the witness” by presenting her with just his photograph. (Id.,
PageID #166–67.) The trial court did not cite Neil v. Biggers, 409 U.S. 188 (1973), in
ruling on Petitioner’s motion to suppress.

At trial, a jury convicted Petitioner of attempted murder, felonious assault,
aggravated robbery, and aggravated burglary. (ECF No. 7-1, PageID #178.) The trial
court sentenced Mr. Smith to an aggregate prison term of 23 years for these
convictions and for violating the terms of his post-release control in a prior State case.
(Id., PageID #180–81.)
PROCEDURAL HISTORY
A. Direct Appeal
On direct appeal, Petitioner argued that the trial court committed prejudicial

error by denying his motion to suppress Tolliver’s identification of him as her
assailant. (Id., ¶ 6, PageID #397). The intermediate State appellate court ruled that
the trial court did not err in denying Petitioner’s motion to suppress. (Id., ¶ 49,
PageID #407.) The appellate court concluded that Lt. Johnson’s procedure for
identification was impermissibly suggestive because he made repeated disparaging
statements about Mr. Smith and told Tolliver about evidence linking Mr. Smith to
the scene before she conclusively identified him. (Id., ¶ 37, PageID #404.) However,

applying Biggers, 409 U.S. 188, the appellate court held that the identification was
otherwise reliable under the totality of the circumstances because Tolliver was
already familiar with Mr. Smith, had ample opportunity to see her assailant clearly
when she opened her door, and was not suffering any physical impairment to her
sight. (Id., ¶¶ 44–48, PageID #406–07.)
After the appellate court’s ruling, Petitioner timely appealed to the Ohio

Supreme Court. (Id., PageID #424–25.) On April 3, 2019, the Ohio Supreme Court
declined to exercise jurisdiction. (Id., PageID #460.)
B. Federal Habeas Petition
On February 26, 2020, Petitioner applied for a writ of habeas corpus. (ECF
No. 1.) The petition asserts seven grounds for relief. (Id., PageID #6–15.) Only
ground two remains at issue. In ground two, Petitioner asserts that the trial court
erred in denying his motion to suppress. (Id., PageID #7.) He argues that the State
trial court violated his Fourth and Fourteenth Amendment rights by admitting the
identification evidence. (Id.)
On January 11, 2023, the Magistrate Judge issued a report and

recommendation that the Court dismiss ground one as non-cognizable, grounds six
and seven as procedurally defaulted, and grounds two, three, four, and five on their
merits. (ECF No. 26, PageID #2971, #2979 & #2990–98.) Further, the Magistrate
Judge recommended that the Court issue a certificate of appealability as to ground
two. (Id., PageID #2999.) Respondent objects to that recommendation. (ECF No. 28,
PageID #3004–08).

STANDARD OF REVIEW
A district court judge may designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition, by a judge of the court,” 28
U.S.C. § 636(b)(1)(B), of a petition for a writ of habeas corpus, which the Court does
by local rule, see LR 72.2. When reviewing a report and recommendation, if a party
objects within the allotted time, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); United States
v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). “Objections must be specific, not
general” and should direct the Court’s attention to a particular dispute. Howard v.
Secretary of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). “The filing of
objections to a magistrate’s report enables the district judge to focus attention on
those issues—factual and legal—that are at the heart of the parties’ dispute.”
Thomas v. Arn, 474 U.S. 140, 147 (1985).
Upon review, the court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). Importantly, the Court’s job is not to conduct a free-wheeling
examination of the entire report and recommendation, but only to address any
specific objections that a party has advanced to some identified portion of it.
Accordingly, it is the Court’s task in this matter to review the Magistrate Judge’s
report and recommendation de novo, based on the specific objections the party raises.

ANALYSIS
Where a petitioner “is in custody in violation of the Constitution or laws or
treaties of the United States,” he is entitled to a writ of habeas corpus. 28 U.S.C.
§§ 2241(c)(3) & 2254(a). At bottom, the writ tests the fundamental fairness of the
State court proceedings resulting in the deprivation of the petitioner’s liberty. See,
e.g., Brown v. Allen, 344 U.S. 443, 463 (1953); Powell v. Collins, 332 F.3d 376, 388
(6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)); Skaggs v.

Parker, 235 F.3d 261, 266 (6th Cir. 2000).
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
“With the AEDPA, Congress limited the source of law for habeas relief to cases
decided by the United States Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412 (2000).
A State court adjudication is “contrary to” Supreme Court precedent under
Section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law,” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent” and arrives
at a different result. Williams, 529 U.S. at 405. “Avoiding these pitfalls does not

require citation of [Supreme Court] cases—indeed, it does not even require awareness
of [the] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
Under Section 2254(d)(1), an unreasonable application of federal law is
different than an incorrect application of federal law. See Harrington v. Richter, 562
U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410). A State court adjudication

involves “an unreasonable application of” Supreme Court precedent under Section
2254(d)(1) in one of two ways: (1) if the State court identifies the correct governing
legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of
the particular State prisoner’s case; or (2) if the State court either unreasonably
extends a legal principle from the Court’s precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a new context where it
should apply. See Williams, 529 U.S. at 407.
I. Objection
Respondent objects to the Magistrate Judge’s recommendation that the Court
grant a certificate of appealability as to ground two of the petition. (ECF No. 28,

PageID #3004). Specifically, Respondent argues that the Magistrate Judge’s
evaluation of ground two on its merits gave appropriate deference to the State courts.
(Id., PageID #3005.) Even if Lt. Johnson’s identification methods were not “best
practices,” Respondent argues, that does not amount to an appealable ground for
habeas relief. (Id., PageID #3006.)
Respondent quotes the Magistrate Judge’s independent evaluation of ground
two of the petition under Biggers to argue that sufficient factors weighed in favor of

the reliability of Tolliver’s identification and, therefore, that ground two lacked merit.
(Id., PageID #3004–05.) Then, Respondent argues this conclusion demonstrates that
Mr. Smith has not made a substantial showing that admission of the identification
evidence at trial denied him a constitutional right. (Id., PageID #3006.)
In response, Petitioner argues that Respondent misrepresents the applicability
of Biggers to this case and asks the Court to grant the writ as to ground two or

overrule Respondent’s objection and grant a certificate of appealability. (ECF No. 29,
PageID #3010 & #3014.) Specifically, Petitioner disputes Respondent’s position that
Biggers is not applicable to a case where the witness knows the assailant. (Id.,
PageID #3010.) Also, Petitioner avers that Respondent incorrectly argues that the
full transcript of Tolliver’s conversations with Lt. Johnson were admitted as evidence
at trial. (Id.) Trial counsel’s decision not to play this audiotape and appellate
counsel’s failure to raise the issue on direct appeal are the bases for Petitioner’s
ineffective assistance of counsel claim. (ECF No. 1, PageID #8–9.) Because Petitioner
did not file an objection to the report and recommendation and the Magistrate Judge
does not address this issue, the Court declines to address it here.

II. Certificate of Appealability as to Ground Two
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This means that the petitioner must
show that reasonable jurists would find the district court’s determination of the
relevant constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S.

274, 282 (2004). The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
II.A. Application of Biggers
An identification violates a defendant’s right to due process where the
identification procedure was so unnecessarily suggestive as to run the risk of
irreparable mistaken identification. Perry v. New. Hampshire, 565 U.S. 228, 232

(2012). The Supreme Court directs courts to engage in a case-by-case assessment of
the totality of the circumstances to determine whether improper police conduct
created an impermissible risk of misidentification. Biggers, 409 U.S. 188; see also
Manson v. Brathwaite, 432 U.S. 98, 116 (1977). After making this assessment, trial
court should suppress the identification evidence if it is unreliable because “reliability
is the linchpin.” Brathwaite, 432 U.S. at 114.
The central question is “whether under the ‘totality of the circumstances’ the
identification was reliable even though the confrontation procedure was suggestive.”
Biggers, 409 U.S. at 199. The following factors are relevant to determining reliability:

the opportunity of the witness to view the accused at the time of the crime; the
witness’s degree of attention; the accuracy of any prior description of the accused; the
level of certainty the witness demonstrates at the confrontation; and the length of
time between the crime and the confrontation. Id. at 199–200. Courts weigh these
factors against the corrupting effect of the suggestive identification process.
Brathwaite, 432 U.S. at 114.

The parties disagree whether Biggers is binding in this case. Petitioner argues
that Biggers is established Supreme Court precedent that the State trial court
ignored in ruling on his motion to suppress. (ECF No. 29, PageID #3009–10.)
Respondent argues that Biggers is not binding in cases where the witness knew the
assailant. (ECF No. 28, PageID #3005.) In Biggers, the Supreme Court did not
address a witness’s prior acquaintance with the accused. Biggers, 409 U.S. at 200.
Where a witness knows the individual she identified, as was the case with Tolliver

and Mr. Smith, that fact informs the reliability analysis, but does not render Biggers
irrelevant. See Haliym v. Mitchell, 492 F.3d 680, 706 (6th Cir. 2007) (holding that
prior acquaintance increases the likelihood of an accurate and reliable identification
but does not render the Biggers analysis moot); but see United States v. Beverly, 369
F.3d 516, 539 (6th Cir. 2004) (noting that the Biggers factors are not particularly
helpful where there is prior acquaintance).
Ultimately, this dispute is not determinative of the Court’s ruling on
Respondent’s objection for two reasons. First, the trial court need not affirmatively
cite Supreme Court precedent, it need only engage in analysis that is not contrary to

that precedent. Early, 537 U.S. at 8. Here, the trial court analyzed the reliability of
Tolliver’s identification, although it did so in a cursory manner. (ECF No. 7-1, PageID
#166.) Second, the State intermediate appellate court and the Magistrate Judge
engaged in a Biggers analysis and concluded that Tolliver’s identification of
Mr. Smith included sufficient indicia of reliability. (ECF No. 26, PageID #2986–88;
ECF No. 7-1, ¶¶ 44–48, PageID #406–07.) Respondent does not otherwise object to

the Magistrate Judge’s analysis of the Biggers factors. (Id.) The question relevant to
Respondent’s objection is whether, under Biggers and other established Supreme
Court precedent, Petitioner made a substantial showing of a violation of his due
process rights.
II.B. Substantial Showing
Respondent’s objection characterizes Lt. Johnson’s actions as not “best
practices” and does not concede, as the Magistrate Judge found, that they were

impermissibly suggestive. (ECF No. 28, PageID #3006.) There is little question here
whether the identification procedures Lt. Johnson employed were unduly suggestive
and unnecessary. The State trial court expressed concern about them. (ECF No. 7-1,
PageID #166.) The intermediate State appellate court determined that the
identification procedures were unnecessary and suggestive. (Id., ¶ 37, PageID #404.)
Further, the record shows that these finds are not erroneous. Before Tolliver
identified Mr. Smith as her assailant, Lt. Johnson showed her a picture of Mr. Smith
and said, “I think I found out who did this to you,” then repeatedly made suggestive
statements about Mr. Smith’s character and criminal history. (Id.)
However, the Magistrate Judge and the State courts weighed Tolliver’s prior

acquaintance with Mr. Smith heavily in favor of the reliability of her identification.
(ECF No. 7-1, PageID #166–67; id., ¶¶ 44–48, PageID #406–07; ECF No. 26, PageID
#2987–88.) Tolliver and Mr. Smith exchanged upwards of eighty text messages
and/or phone calls within the 24 hours before the attack, and Tolliver had recently
accepted a ride to Cleveland from Mr. Smith. (ECF No. 7-1, ¶ 22, PageID #401.)
Other factors the State intermediate appellate court considered included Tolliver’s

opportunity to view her assailant and her testimony that she was certain Mr. Smith
was her assailant. (Id., ¶¶ 44–48, PageID #406–07.) However, Tolliver also failed to
provide any description of her attacker before Lt. Johnson showed her Mr. Smith’s
photo and identified Mr. Smith as her assailant. (Id., ¶¶ 21–21, PageID #401.) Also,
Tolliver had recently suffered a traumatic head injury that left her in a coma and
potentially open to suggestion. (Id., ¶ 18, PageID #400.)
On balance, the Court agrees with the Magistrate Judge’s evaluation of the

merits of Petitioner’s ground for relief. On the merits, the record shows that the
judgment of the State courts is not contrary to or an unreasonably application of
clearly established federal law as determined by the Supreme Court. However, a
petitioner makes a substantial showing of a constitutional right by demonstrating
“that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. Here,
reasonable jurists could disagree whether Tolliver’s identification of Mr. Smith had
sufficient reliability to overcome Lt. Johnson’s suggestive identification procedures,
as the State trial court determined. As discussed above, Lt. Johnson’s identification
procedures were suggestive and there are several facts surrounding Tolliver’s
identification of Petitioner that weigh against reliability. Therefore, Petitioner
makes a substantial showing of an entitlement to a certificate of appealability on
ground two of the petition.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Respondent’s
objection (ECF No. 28) and ADOPTS the Magistrate Judge’s report and
recommendation (ECF No. 26). The Court GRANTS a certificate of appealability
as to ground two of the petition under 28 U.S.C. § 2253(c). For good cause
shown, the Court GRANTS Petitioner’s motion to waive the filing fee for the
certificate of appealability (ECF No. 27.)
SO ORDERED. Dated: June 20, 2023

J.Philip Calabrese”
United States District Judge
Northern District of Ohio

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10372139. Public record. Not legal advice.