# Kelly v. Warden, Pickaway Correctional Institution

> District Court, S.D. Ohio · November 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10374342

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 26, 2019
- **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/10374342

## How later opinions describe it (automated extraction)

- holding that absent some indication that the alleged antagonistic defendants misled or confused the jury, the mere fact that co-defendants blame each other does not compel severance

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JERMAINE KELLY,
CASE NO. 2:19-CV-01984
Petitioner, JUDGE MICHAEL H. WATSON
Chief Magistrate Judge Elizabeth P. Deavers
v.

WARDEN, PICKAWAY
CORRECTIONAL INSTUTION

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this pro se petition for a writ of habeas corpus under 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ,
Petitioner’s Traverse and Supplement to the Traverse, and the exhibits of the parties. For the
reasons that follow, the undersigned RECOMMENDS that this action be DISMISSED.
I. Facts and Procedural History
Petitioner challenges his convictions after a trial in the Delaware County Court of
Common Pleas for murder, intimidation, and having a weapon while under disability, with
specifications. The Ohio Fifth District Court of Appeals summarized the facts and procedural
history of the case as follows:
{¶ 3} On July 22, 2016, the Delaware County Ohio Grand Jury returned a joint
indictment against co-defendants Jermaine Kelly and Reginald Conley. The
indictment charged Appellant Kelly with two counts of Murder; Count One in
violation of R.C. § 2903.02(A) and Count two in violation of R.C. § 2903.02(B),
both unclassified felonies, Count Three: Intimidation of a Witness, in violation of
R.C. § 2921.04(B)(2), a third-degree felony, and two counts of Having a Weapon
Under Disability in violation of R.C. § 2923.13(A)(4). Counts One, Two, and Three
also each carried a Gang Affiliation Specification in violation of R.C. § 2941.142
and Firearm Specifications, in violation of R.C. § 2941.145.
{¶ 4} Prior to trial, the defendants moved to sever their trials. Following an
evidentiary hearing, the motions were denied. The trial court also held an
evidentiary hearing on the defendants’ motions in limine to exclude evidence of
Conley’s involvement in a double homicide with Gervins. Again, the trial court
denied the motions.

{¶ 5} Appellant waived his right to a jury trial as to the gang specifications related
to Counts One, Two, and Three, and his right to a jury trial as to the having weapons
under disability charges. Those charges were tried to the court. The murder and
intimidation charges along with the firearm specifications were all tried to a jury,
with the trial commencing on March 6, 2017 and continuing through March 7, 8, 9
and 10, 2017. At trial, the jury heard the following account of the events which took
place on November 9, 2012, which led to the above charges:

{¶ 6} Victoria Hilbrands testified that on November 9, 2012, she lived at 6901
Redbank Rd. in Galena, Ohio. Around 5:30 P.M. she heard a loud banging on the
door. T. at 254–255. She could not initially see anyone outside the door. However,
she heard a man, later identified as Dontee Gervins, yelling that he had been shot
and asking to be let in. T. at 256. Mrs. Hilbrands immediately called 911. T. at 257.
That call was placed at 5:43 P.M. T. at 284. While on the phone with 911, Mrs.
Hilbrands could hear Gervins on his cell phone. Gervins repeatedly said “I won’t
tell anybody” to the person with whom he was speaking. T. at 260.

{¶ 7} Gale Dunlap testified that she lived on Gorsuch Rd. This is a short distance
from the Hilbrands’ residence on Redbank Rd. T. at 346–347. On November 9,
2012 Dunlap was returning home from work sometime after 5:00 P.M. when a
vehicle pulled out of the Hilbrands driveway. The vehicle exited the driveway in a
manner that forced her to brake her vehicle. T. at 350. She described the vehicle as
a light blue or gray sedan but could not identify who was driving or how many
occupants were in the vehicle. T. at 351. Mrs. Dunlap was behind the vehicle for a
short period of time. During this time, the vehicle failed to stop at two stop signs.
T. at 353. Around this same time Mrs. Dunlap saw a squad traveling toward the
location where the shooting had occurred. Mrs. Dunlap was unable to positively
identify the vehicle but testified it was consistent with that later found to be used
by Reginald Conley. T. at 356.

{¶ 8} Deputy Charm Johnson (also referred to in the record by her maiden name as
“Charm Miller”) testified that she was the first person to arrive at the Hilbrands’
residence after the shooting. T. at 284–286. She arrived at approximately 5:50 P.M.
T. at 299. Dep. Johnson found Gervins laying on the front porch of the Hilbrands’
residence. T. at 286. Gervins appeared very weak, indicated he had been shot, but
was unable to verbalize his name or other information at that time. T. at 286.
Gervins’ cellphone was lying next to him on the porch and Dep. Johnson could hear
a female voice on the line. T. at 287. Shortly thereafter, Dep. Johnson notified
medics that the scene was safe and they could approach to aide Gervins. T. at 288.
{¶ 9} Brooks Church testified that he was one of the first medics who arrived at the
residence. T. at 326. Church described Gervins as scared, very alert, barely able to
speak, but could speak a little in between breaths. T. at 328. Church asked Gervins
where the shooting occurred. Gervins responded “here” and gestured as if to
indicate near the residence. T. at 330. When asked, Gervins indicated that he knew
who shot him. T. at 330.

{¶ 10} Detective Charles Gannon was the first officer to arrive on scene after
Deputy Johnson. He testified he became involved in the investigation at 5:42 P.M.
on November 9, 2012. T. at 1190. He was on his way home when the 911 call was
placed, but he was the closest detective to 6901 Red Bank Rd. T. at 1190. When
Det. Gannon arrived at the scene, medics were working on Mr. Gervins and he was
still alive. T. at 1194. Shortly after Det. Gannon arrived, Gervins’ cellphone began
ringing and “Wifey” was displayed as the caller on the screen of the cell phone. T.
at 1200. Det. Gannon had a brief conversation with Amber Bland and ended the
call to continue his work on the scene. T. at 202–1203. Det. Gannon finished
assisting processing the scene and documented what occurred. T. at 1203–1212.
After his work at the scene was completed, he drove to Riverside hospital. T. at
1217.

{¶ 11} At the hospital, Det. Gannon learned that Dontee Gervins had been living
with his fiancé, Amber Bland, on the near-east side of Columbus, Ohio. T. at 376.
Gervins was selling marijuana to pay the bills and was associated with a gang called
the Bloods. T. at 377. During this same time frame, Ms. Bland informed him that
Gervins and her brother (Richard Bland) were closely associated with a man named
Reginald Conley. T. at 378. He learned Conley went by the street name “Twice.”
T. at 378.

{¶ 12} Ms. Bland explained that late in the morning on November 9, 2012, Gervins
and Ms. Bland ordered pizza and “chilled” at their residence with his friend “Blaze”
(later identified as Domino Mack) and Blaze’s girlfriend. T. at 379. After they
finished eating pizza, Gervins received a phone call and stated that he had to leave
but would be back. T. at 380. Before Gervins left, Ms. Bland heard him go into the
laundry room and retrieve an unknown quantity of money from a safe in the ceiling.
T. at 381–382. Shortly thereafter, Gervins left with Blaze and Blaze’s girlfriend.
Ms. Bland then fell asleep with her children. T. at 383.

{¶ 13} Several hours later, Ms. Bland was awoken by a phone call from Gervins.
T. at 383. When she answered the phone, he immediately stated “Babe, I’ve been
shot” and hung up the phone. T. at 383. This call was placed at 5:44 P.M. Ms. Bland
immediately called him back and had a short conversation with him. Gervins
sounded scared and out of breath. T. at 384.

{¶ 14} When Ms. Bland called him back, Gervins stated that he had been shot and
that he was in New Albany. When Ms. Bland asked if he knew who shot him,
Gervins stated that it was “Ice” who shot him and that she was not to tell anyone.
She stayed on the phone with him until the paramedics arrived a few minutes later
and the phone was hung up. T. at 385.

{¶ 15} Ms. Bland went to the hospital to be with Gervins and was accompanied by
a number of his friends and family. One individual she spoke with at the hospital
was “Blaze.” T. at 387. Because “Blaze” was the last person she had seen Mr.
Gervins with that day, she spoke with him about what had transpired. She then
provided that information to Gervins’ sister (Dena Bronaugh) and to detectives
from the Delaware County Sheriff’s Office. T. at 387– 388.

{¶ 16} Ms. Bland stayed with Mr. Gervins at the hospital most of the week that
followed the shooting. During that time he was intubated and unable to breath
without the assistance of a tube down his throat. Ultimately, Mr. Gervins
succumbed to his injuries on November 18, 2012. T. at 389.

{¶ 17} Dr. Gerston testified that Gervins was shot in the lower-mid back. The bullet
travelled at an upward trajectory perforating the liver and the right lung of Gervins.
T. at 472–474. This would have caused continuous internal bleeding, difficulty
breathing, and immobility in a matter often to fifteen minutes. T. at 475. Despite
efforts to save Gervins’ life, he ultimately died as a result of the gunshot wound to
the back. T. at 477.

{¶ 18} In the days immediately after the shooting, Detectives from the Delaware
County Sheriff’s Office began to make use of the leads provided by Gervins’ family
at the hospital. Det. Gannon used the contact information provided by Gervins’
family and subpoenaed Conley’s call detail records for the relevant timeframe. T.
at 1219–1220.

When he received information that Jermaine Kelly may have been involved in the
shooting, he obtained historical cell phone records for Kelly as well. T. at 1221.
Det. Gannon also subpoenaed Gervins’ cellphone records.

{¶ 19} The records identified numerous calls between Conley and Gervins and
between Conley and Kelly on the date of the shooting. These records were
ultimately given to Det. Moledor for cell phone mapping. T. at 1223. Det. Moledor
was able to map the locations of cell phones belonging to Dontee Gervins, Jermaine
Kelly, and Reginald Conley around the time Gervins was shot.

{¶ 20} Generally speaking, all three phones were in the area of the Wilson Market
on the near east side of Columbus approximately one hour before the shooting.
Between 5:00 P.M. and 5:45 P.M. all three phones can be seen traveling northbound
out of Columbus. At 5:33 P.M. Kelly’s phone connected to a cell phone tower
approximately 2.7 km. from the location of the shooting. That tower would have
been the closest to Kelly when the call was made. T. at 981. By approximately 6:00
P.M. Kelly and Conley’s phones can both be seen traveling southbound back into
the Columbus area. No data from the cell phone mapping was inconsistent with
Conley and Kelly being present at the shooting on Redbank Rd. T. at 985.

{¶ 21} Around the time of Gervins’ death, investigators were attempting to identify
possible suspects and motive for the shooting. Det. Gannon learned that
approximately ten days prior to the shooting, Gervins had been involved in a
shooting on Gault St. in Columbus. Det. Gannon obtained records from Columbus
Police regarding the Gault Street shooting and learned that Gervins was suspected
as being the driver in a robbery that ultimately resulted in the death of two
individuals. T. at 1238. The information indicated a man named “Twice” was also
involved in the Gault St. shooting. The fact that both shootings involved someone
with the street name “Twice” and Gervins led him to interview Mary Page and
Jonathan Dantzler. T. at 1239–1240.

{¶ 22} Mary Page testified that in 2012 she allowed Gervins to sell drugs out of her
residence. T. at 732. This residence was across the street from an apartment
complex on Gault St. in Columbus, Ohio. T. at 734. Page testified that in the days
leading up to the death of Gervins, men identified as “Twice” and “Jesus” (whom
she later identified as Jonathan Dantzler) came to her residence with Gervins. T. at
734–736. “Twice” and Dantzler asked Page to knock on the door of a crack dealer
she knew in the Gault St. Apartments. The plan was that Conley and Dantzler would
then rob the dealer at gunpoint, while Gervins would remain in the car to facilitate
their escape. T. at 735, 739–740.

{¶ 23} Page explained that when she, Dantzler, and “Twice” approached the door
to the residence, she knocked on the door and inquired of an occupant if she could
buy drugs. When she was told no by the occupant, she asked to use the bathroom.
T. at 739. When she was told she could not use the bathroom, “Twice” and Dantzler
began shooting into the apartment and went inside. Page did not enter the residence
and instead fled the scene.

{¶ 24} When Page arrived home, she saw “Twice” and Dantzler get into the car
with Gervins and drive off. T. at 740. Page explained that when she saw “Twice”
and Gervins later in the day, “Twice” told her not to say anything and told her to
implicate two dark skinned guys if questioned about the robbery. T. at 743. At this
time, Gervins gave her some drugs. Neither Gervins, Dantzler, nor “Twice” were
dark skinned. T. at 744.

{¶ 25} Later that day, Page learned that someone had been killed in the shooting
and one person was critically injured. T. at 743. Shortly thereafter, Columbus Police
arrived at her home and arrested her for her involvement in the robbery. She initially
told investigators it was two dark-skinned guys who put her up to it, but decided to
tell the truth a few moments into her six minute interview. T. at 745. She later
identified Gervins as the driver, Dantzler as “Jesus”, but did not know who “Twice”
was. T. at 756. Page ultimately pled guilty to manslaughter with a firearm
specification and testified against Dantzler at his trial. T. at 728–729.
{¶ 26} Dantzler testified that he was convicted for two counts of homicide arising
out of the Gault St. shooting described by Mary Page. T. at 1072. He stated that on
the day of the Gault St. shooting, he went to the Gault St. residence in question with
Reginald Conley (“Twice”), Gervins, and Page. T. at 1075. Dantzler explained that
Gervins drove him, Conley, and Page to the Gault St. residence and that Gervins
remained in the car while Page, Conley and he went up to get drugs from the
apartment. T. at 1076. Dantzler was arrested a few days after the shooting.

{¶ 27} On the day Gervins was shot, Dantzler was incarcerated awaiting trial for
the Gault St. shootings. T. at 1072. While incarcerated, Dantzler placed a phone
call to his brother Jermaine Kelly (who goes by “Mac Maine” and “Maine”). T. at
1069, 1073. On that call, Kelly informed Dantzler that he was “just with Twice.”
Kelly then stated “I hope we shoot good.” Kelly then informed Dantzler that they
“shot a little deer.” T. at 1168–1169. This call was placed on November 9, 2012 at
6:34 P.M. and occurred less than an hour after Gervins’ shooting. In a call to his
mother, Kelly acknowledged his participation in this call. T. at 1160.

{¶ 28} As part of the investigation, investigators attempted to locate the vehicle
described by Gale Dunlap. Det. Gannon testified he located a traffic citation issued
to Reginald Conley in August of 2012. The ticket indicated Conley was driving a
2006 Ford Fusion, green in color, with a plate matching the one he borrowed from
Christopher Hall. T. at 1232–1233. This prompted detectives to interview
Christopher Hall.

{¶ 29} Christopher Hall testified that he knew Reginald Conley as “Reggie Two
Times” and “Twice” in mid to late 2012. T. at 531. Hall explained that in 2012, he
owned a green Ford Fusion that he had lent to Conley. T. at 532, 536. Conley had
possession of the vehicle for at least several weeks. In late 2012, Hall received a
phone call that he could retrieve the vehicle. T. at 537. However, Hall was unable
to retrieve the vehicle because the Columbus Police impounded it prior to his
arrival. T. at 538. This vehicle was later turned over to the Delaware County
Sheriff’s Office for processing. T. at 566.

{¶ 30} BCI Supervising Agent Gary Wilgus testified he processed the vehicle Hall
provided Conley during the timeframe in question. T. at 566. As part of the
processing of that vehicle, Agent Wilgus photographed the interior and exterior of
the vehicle. T. at 568–.585. Additionally, he attempted to locate the presence of
gunshot residue, blood, and latent fingerprints. T. at 571–594. He explained that
had a firearm been discharged inside the motor vehicle, there would have been
gunshot residue present. T. at 581. Ultimately, no evidence of gunshot residue or
blood was located on the vehicle itself. T. at 590–591; 620.

{¶ 31} While no gunshot residue was identified on the vehicle itself, Agent Wilgus
documented a blue Champion sweatshirt in the backseat of the vehicle he
processed. T. at 571. When the sweatshirt was forensically processed, gunshot
residue and the DNA of Reginald Conley were found on it. T. at 637–644; 687–
689. Daniel Steiner also testified that fingerprints lifted by Agent Wilgus from
inside the vehicle were left by Conley. T. at 718.

{¶ 32} During the course of the investigation, Reginald Conley made some
statements about what occurred in this case. When interviewed by Det. Gannon, he
identified himself as “Twice.” T. at 1241. He stated that on the date of the shooting,
he received a call from Gervins. In response to that call, Conley met up with
Gervins at the Wilson Market. He stated Gervins was brought to the market by
“Blaze” (Domino Mack); the three waited there for the arrival of Conley’s cousin.
T. at 1243. After waiting with them for a short time, Conley claimed he walked to
his grandma’s house a couple blocks away. T. at 1244. Conley stated he had his
phone with him all day and that if law enforcement checked the records it would
show him at his grandma’s house near Wilson Market. T. at 1248.

{¶ 33} In addition to speaking with law enforcement, Conley made statements to
Ms. Bland about Gervins’ shooting. Ms. Bland testified she saw Conley, whom she
also knew as “Twice”, on Near Year’s Eve of 2012 at an establishment called “The
Moonlight.” T. at 392. When she saw him, he approached her and they discussed
the shooting of Gervins. T. at 395. He stated he was with Mr. Gervins when he went
up to Delaware on the day Gervins was shot. He further stated he had a gun on his
person at the time Gervins was shot. T. at 395. Ms. Bland identified Mr. Conley in
the courtroom as the person she knew as both Reginald Conley and “Twice.” T. at
391.

{¶ 34} Conley made additional statements regarding the incident to his cousin
Lamonte Rayford. Rayford is also the brother of Amber Bland. Rayford testified
he learned that Gervins, his sister’s paramour, was shot while Rayford was
incarcerated in Franklin County. T. at 784. He explained his sister, Amber Bland,
told him what she knew while he was at the Workhouse in Franklin County. This
prompted Rayford to call “Twice” (Reginald Conley) from jail. T. at 787.

{¶ 35} During this call, Rayford discussed with Conley what had transpired with
Gervins and the Gault St. shooting for which Dantzler had been arrested. T. at 795.
Rayford commented to Conley that he heard Conley was out doing his “thug” too
(meaning committing the same offenses as Dantzler). After laughing, Conley stated
“they got my name in their mouth” (meaning individuals are accusing him of
something). T. at 796–797. When the topic turned to the shooting of Gervins,
Conley made some self-aggrandizing comments and then laughed when Rayford
suggested Conley had left Gervins for dead. T. at 799.

{¶ 36} Finally, statements were presented that Conley made to fellow inmate
Christopher Brookman. Christopher Brookman testified he was incarcerated at the
Delaware County Jail with Reginald Conley while both were awaiting disposition
of their criminal cases. T. at 921. Brookman explained that on one occasion an
inmate “trustee” at the jail had a brief conversation with Conley, which caused
Conley to become upset. T. at 923–24. When Brookman questioned Conley about
why he was upset, Conley stated he learned someone he knew on the street was
going to testify that Conley had admitted to the crime for which he was awaiting
trial. T. at 926. Conley then indicated that “he never should have trusted that weak-
ass nigger. I shouldn’t have never said nothing to him.” T. at 927.

{¶ 37} Appellant also presented a number of Kelly’s statements at trial. Detective
Arthur Kester, III, testified he interviewed Jermaine Kelly on two separate
occasions. He was first interviewed on December 14, 2012. T. at 1153. During the
interview Kelly denied knowing anyone by the name of Reginald Conley, “Twice”,
or “Baby Twice.” He further denied knowing an individual by the name of Jonathan
Dantzler, “Jesus” or “Baby Jesus.” T. at 1155. During the second interview with
Kelly, Kelly requested to see the evidence against him. When the Detectives
produced a binder and started to go through the evidence Kelly told them to shut
the book and left the interview. T. at 1157.

{¶ 38} Months after Gervins’ shooting, Kelly also made statements to Lamonte
Rayford regarding Gervins’ shooting. Rayford explained he met Kelly after his
release from prison and knew him as “Mac Maine.” T. at 803. Rayford testified he
began to see Kelly daily at the “Taste of Chicago” pizza shop near where they lived.
While Rayford described himself as merely an acquaintance of Kelly, he explained
his cousin “Meme” (Demetrius Edwards) was very close to Kelly. T. at 806.

{¶ 39} Rayford explained that on one occasion, Rayford and “Meme” began
discussing the Gervins shooting in the presence of Kelly. At that time, Kelly
explained that Gervins had to be killed because Gervins was going “to tell on some
shit that went down.” Kelly explained that he had been the one who shot Gervins.
He explained that Gervins was taken to Delaware to go get money, and told he had
to switch seats in the car. When Gervins exited the car, Kelly shot him. T. at 807–
809.

{¶ 40} As part of the investigation, law enforcement forensically processed the
phones of Conley and Kelly. T. at 1113. The iPhone that was examined was
associated with the phone number (614) 316–1329. It contained numerous
messages suggesting Jermaine Kelly (Mac Maine) was using the phone in
November and December of 2012. This phone was taken from Kelly’s person upon
his arrest. T. at 1125–1129. The phone was linked to a “Mac Maine” Facebook page
with associated email addressed JermaineKelly82@yahoo.com and
MacMaine.3@yahoo.com. Kelly’s phone also included contact information for
“Baby Twice.”

{¶ 41} Detective Ullom also examined the Blackberry Curve associated with phone
number (614) 701–0403 and taken from the person of Reginald Conley. T. at 1134.
This phone and corresponding number were provided to law enforcement by
Conley during his initial interview. T. at 1246. The data recoverable from the phone
was quite limited as it appears that the phone was newly activated on November
18, 2012 at approximately 6:48 P.M. T. at 1136–1137. Det. Gannon testified that
Conley activated the cell phone the same day Gervins died. T. at 1247.

{¶ 42} At trial, Appellee also presented the testimony of Richard Bland. Mr. Bland
testified that he was the brother of Lamonte Rayford and Amber Bland. T. at 882.
He testified the street name of Reginald Conley was “Twice” and was familiar with
Jermaine Kelly being “Mac Maine.” T. at 883. He explained that he didn’t know
Kelly very well, but that Conley was his cousin. T. at 885. He testified that around
the time Gervins was shot, Conley was driving a greenish Ford Fusion that had a
mirror missing on the passenger side. T. at 888.

{¶ 43} Appellee presented additional testimony relevant to the gang specification
at trial. Lamonte Rayford, a cousin to Reginald Conley, testified he has been a gang
member for most of his life in the Columbus area. He explained how individuals
typically join a gang. He explained that one can commit a variety of offenses (i.e.,
sell drugs, rob people, or kill people) or they can be “blessed” into a gang if they
have someone in their family with sufficient tenure and rank in the gang. T. at 774.
He further explained that gangs typically have certain geographic territory within
the city that can affect which gang individuals in the area join and one’s family
relationship has some bearing. T. at 775.

{¶ 44} Based upon where he lived and whom he was related to, Rayford testified
he was a “Blood.” However, he commonly associated with “Crips” who he knew
to engage in robberies, drug transactions, and other illicit acts. T. at 776. In 2012,
Rayford was associated with the “ATM Crips” (“Anytime Money Crips”); other
members included “Twice” (Reginald Conley), “Meme” (Demetrius Edwards),
“Van” (Conley’s brother), and several others. The purpose of this gang was to get
money by any means necessary. T. at 777–778. Reginald Conley had “ATM”
tattooed on his body to identify himself as a member of this gang. T. at 779.

{¶ 45} Outside the presence of the jury, Rayford explained that back in 2012 he
and Conley would consume and sell marijuana, codeine, methazine, pills, and
powders together. T. at 867. He explained that they got money for drugs by
“hustling” (selling drugs) and “robbing.” T. at 868. On a number of occasions, he
saw Conley sell drugs. T. at 868. Hall also testified Conley sold drugs to support
his own habit. T. at 554:1–3. Rayford testified he committed a number of robberies
with Conley in 2012. T. at 870. When asked for the names of specific stores they
robbed together, he indicated he would rather not answer that question.

{¶ 46} Outside the presence of the jury, Dantzler explained that he was from Trevitt
Heights, and the gang that controls that area is called the Crips. T. at 1085. He
explained that he was a Crip and that there were certain colors and signals
associated with the gang. T. at 1087. Dantzler explained that he would sell crack
cocaine around his part of the city to make ends meet. T. at 1088. He explained that
he also identified as an “ATM Crip.” T. at 1090.
{¶ 47} At the close of the state’s case, the prosecution voluntarily dismissed one of
Kelly’s weapon-under-disability charges, while the court dismissed Conley’s
weapon-under-disability charge pursuant to Crim.R. 29. The defendants were found
guilty of all the remaining charges and specifications.

{¶ 48} At sentencing, the court sentenced both defendants to a mandatory term of
fifteen years to life for the first count of murder, plus six years mandatory
consecutive time for the firearm use and criminal gang specifications. The other
counts were merged into the murder pursuant to R.C. § 2941.25. Additionally, as
to Kelly, the court imposed a concurrent term of thirty-six months on the weapon-
under-disability count. The aggregate prison term for both defendants was twenty-
one years to life.

{¶ 49} Appellant Kelly now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶ 50} “I. THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS
RIGHT TO A FAIR TRIAL AND CRIM.R. 14 BY DENYING APPELLANT’S
MOTION TO SEVER HIS TRIAL FROM THAT OF CODEFENDANT.

{¶ 51} “II. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL’S
FAILURE TO RENEW THE SEVERANCE ARGUMENT.

{¶ 52} “III. APPELLANT’S CONVICTIONS FOR MURDER, INTIMIDATION,
AND HAVING A WEAPON UNDER DISABILITY, AND THE
SPECIFICATIONS FOR FIREARM USE, VIOLATE APPELLANT’S DUE
PROCESS RIGHTS BECAUSE THEY ARE NOT SUPPORTED BY
SUFFICIENT EVIDENCE.

{¶ 53} “IV. APPELLANT’S CONVICTIONS FOR MURDER, INTIMIDATION,
AND HAVING WEAPONS UNDER DISABILITY, AND THE FIREARM *538
SPECIFICATIONS, ARE NOT SUPPORTED BY THE WEIGHT OF THE
EVIDENCE.

{¶ 54} “V. APPELLANT’S GUILTY FINDINGS ON THE CRIMINAL GANG
SPECIFICATIONS VIOLATED DUE PROCESS BECAUSE THEY ARE NOT
SUPPORTED BY SUFFICIENT EVIDENCE.

{¶ 55} “VI. APPELLANT’S GUILTY FINDINGS ON THE CRIMINAL GANG
SPECIFICATIONS ARE NOT SUPPORTED BY THE WEIGHT OF THE
EVIDENCE.”
State v. Kelly, 105 N.E.3d 527, 530-38 (Ohio 2018). On January 30, 2018, the appellate court
affirmed the judgment of the trial court. Id. On May 23, 2018, the Ohio Supreme Court declined
to accept jurisdiction of the appeal. State v. Kelly, 152 Ohio St.3d 1483 (Ohio 2018).
On May 15, 2019, Petitioner filed this pro se habeas corpus petition. He asserts that he
was denied a fair trial because the trial court refused to grant his request for a severance of his

trial from that of the co-defendant (claim one); that he was denied the effective assistance of
counsel because his attorney failed to renew the request for a severance of trials (claim two); that
the evidence is constitutionally insufficient to sustain his convictions (claims three, five and six);
and that his convictions are against the manifest weight of the evidence (claim four). It is the
Respondent’s position that Petitioner has procedurally defaulted his claims or that they fail to
provide a basis for relief.
II. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a writ of

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to
protect the constitutional rights of criminal defendants, and in order to prevent needless friction
between the state and federal courts, a state criminal defendant with federal constitutional claims
is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).
If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition
is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971). Where a
petitioner has failed to exhaust claims but would find those claims barred if later presented to the
state courts, “there is a procedural default for purposes of federal habeas.” Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to
the highest court of the State so that the State has a fair chance to correct any errors made in the

course of the trial or the appeal before a federal court intervenes in the state criminal process.
This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts
before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir.
2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly
presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives
the state courts a fair opportunity to rule on the federal law claims being asserted. This means
that if the claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal court do
so. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of

federal law which were not resolved on the merits in the state proceeding due to respondent’s
failure to raise them there as required by state procedure” also cannot be resolved on their merits
in a federal habeas case—that is, they are “procedurally defaulted.”
To determine whether procedural default bars a habeas petitioner’s claim, courts in the
Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);
see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part
analysis of Maupin). 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 determine whether the state courts actually enforced the state procedural sanction.
Third, the court must determine whether the forfeiture is an adequate and independent state
ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin,
785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied
with and that the rule [has] an adequate and independent state ground, then the petitioner” may
still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause

sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged
constitutional error. Id.
In order to establish cause, petitioner must show that “some objective factor external to
the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v.
Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause to
excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to
constitute cause, an ineffective assistance of counsel claim generally must “‘be presented to the
state courts as an independent claim before it may be used to establish cause for a procedural
default.’” Id. at 452 (quoting Murray, 477 U.S. at 479). This is because, before counsel’s

ineffectiveness will constitute cause, “that ineffectiveness must itself amount to a violation of the
Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.”
Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir.), cert. denied, 546 U.S. 1017 (2005). Or, if
the claim is procedurally defaulted, petitioner must be able to “satisfy the ‘cause and prejudice’
standard with respect to the ineffective-assistance claim itself.” Edwards, 529 U.S. at 450–51.
The Supreme Court has explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the procedural-default
doctrine in Coleman: “In the absence of the independent and adequate state ground
doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court. The independent and
adequate state ground doctrine ensures that the States’ interest in correcting their
own mistakes is respected in all federal habeas cases.” 501 U.S., at 732, 111 S. Ct.
2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and
procedural default last Term in O’Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct.
1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to
“‘protect the integrity’ of the federal exhaustion rule.” Id. at 848, 526 U.S. 838, 119
S. Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S. Ct. 1728, 144
L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion
requirement, we said, would be utterly defeated if the prisoner were able to obtain
federal habeas review simply by “‘letting the time run’” so that state remedies were
no longer available. Id. at 848, 526 U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1. Those
purposes would be no less frustrated were we to allow federal review to a prisoner
who had presented his claim to the state court, but in such a manner that the state
court could not, consistent with its own procedural rules, have entertained it. In
such circumstances, though the prisoner would have “concededly exhausted his
state remedies,” it could hardly be said that, as comity and federalism require, the
State had been given a “fair ‘opportunity to pass upon [his claims].’” Id. at 854, 526
U.S. 838, 119 S. Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis
added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 94 L.Ed. 761
(1950)).

Id. at 452–53.

If, after considering all four factors of the Maupin test, the Court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on the merits
unless “review is needed to prevent a fundamental miscarriage of justice, such as when the
petitioner submits new evidence showing that a constitutional violation has probably resulted in
a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.
2013) (citing Murray, 477 U.S. at 495–96), cert. denied, 135 S. Ct. 1545 (2015).
III. Claim One
Petitioner asserts that his convictions violate due process because the trial court refused
to grant his motion to sever his trial from that of the co-defendant. The state appellate court
rejected this claim as follows:
Appellant argues that the trial court erred in denying his motion to sever his trial
from his co-defendant. We disagree.

{¶ 57} Defendants may be charged in the same indictment, pursuant to Ohio
Crim. R. 8(B) as follows:
{¶ 58} Two or more defendants may be charged in the same indictment,
information or complaint if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense or
offenses, or in the same course of criminal conduct. Such defendants may be
charged in one or more counts together or separately, and all of the defendants need
not be charged in each count.

{¶ 59} The law favors the joinder of defendants and the avoidance of multiple trials
because joinder conserves judicial and prosecutorial time, lessens the expenses of
multiple trials, diminishes the inconvenience to witnesses, and minimizes the
possibility of incongruous results from successive trials before different juries.
State v. Thomas, 61 Ohio St.2d 223, 400 N.E.2d 401 (1980).

{¶ 60} In order to obtain a severance, a defendant needed to affirmatively
demonstrate prejudice by the joinder. Crim.R. 14.

{¶ 61} Criminal Rule 14 provides, in pertinent part:

If it appears that a defendant or the state is prejudiced by a joinder
of offenses or of defendants in an indictment, information, or
complaint, or by such joinder for trial together of indictments,
information or complaints, the court shall order an election or
separate trial of counts, grant a severance of defendants, or provide
such other relief as justice requires. In ruling on a motion by a
defendant for severance, the court shall order the prosecuting
attorney to deliver to the court for inspection pursuant to Rule
16(B)(1)(a) any statements or confessions made by the defendants
which the state intends to introduce in evidence at the trial.

{¶ 62} The United States Supreme Court has stated, “a district court should grant a
severance under Rule 14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506
U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 1993. Even where the risk of
prejudice is high, “less drastic measures, such as limiting instructions, often will
suffice to cure any risk of prejudice.” Id. Indeed, “[a] request for severance should
be denied if a jury can properly compartmentalize the evidence as it relates to the
appropriate defendants.” United States v. Causey, 834 F.2d 1277, 1287 (6th Cir.
1987). Thus, to prevail on his severance argument, an appellant must show
“compelling, specific, and actual prejudice from [the] court’s refusal to grant the
motion to sever.” United States v. Saadey, 393 F.3d 669, 678 (6th Cir 2005), United
States v. Driver, 535 F.3d 424, 427 (6th Cir. 2008).
{¶ 63} When a defendant makes a pretrial Crim.R. 14 motion to sever, he is
required to renew the motion at the close of the state’s case or the conclusion of all
the evidence so that the trial court can conduct a Crim.R. 14 analysis based on all
of the evidence presented at trial. State v. Rojas, 6th Dist. Lucas No. L-11-1276,
2013-Ohio-1835, 2013 WL 1874826, ¶ 34. Failure to renew the motion forfeits all
but plain error on appeal. Id.; and see State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642, 873 N.E.2d 306, ¶ 23 (an appellant forfeits an error by failing to
preserve an objection, but forfeiture does not extinguish a claim of plain error under
Crim.R. 52(B).)

{¶ 64} We generally review a trial court’s decision on a motion to sever for an
abuse of discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d
151, ¶ 166. But when the appellant forfeits an issue we review only for plain error.
State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 62. Here,
Reynolds’s [sic] trial counsel failed to renew his motion to sever after the state
presented its case or at the close of the evidence. Thus, he has forfeited all but plain
error.

{¶ 65} Plain error is error that affects substantial rights. Crim.R. 52(B). In
determining whether plain error occurred, we must examine the alleged error in
light of all of the evidence properly admitted at trial. State v. Hill, 92 Ohio St.3d
191, 203, 749 N.E.2d 274 (2001). Plain error should be found “only in exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id., citing
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus. Plain error is not present unless the outcome of the trial would have been
different but for the complained of error. State v. Gardner, 118 Ohio St.3d 420,
2008-Ohio-2787, 889 N.E.2d 995, ¶ 78.

{¶ 66} Upon review, we find that the trial court did not err in denying the motion
to sever as the evidence against both defendants was similar. The cell phone record
evidence placed both defendants together with Gervins in the vicinity at the time
the victim was shot. Phone records were also produced showing that Conley called
Kelly after he set up the meeting with Gervins. Both defendants also had the same
motive to silence Gervins; to keep him from identifying Conley (Kelly’s cousin) as
one of the shooters in the Gault Street shooting and from testifying against Dantzler
(Kelly’s brother).

{¶ 67} Thus, joinder was proper, and the trial court did not commit any error, let
alone plain error, when it denied Appellant’s motion to sever.

State v. Kelly, 105 N.E.3d at 538-39.

Petitioner has waived claim one by failing to renew the motion for severance at the close
of evidence. The state appellate court therefore reviewed the issue for plain error only. See
United States v. Davis, 407 F. App’x 32, 39-40 (6th Cir. 2011) (“This Court has ‘unequivocally
stated that failure to renew a motion to sever at the close of evidence results in waiver of the
motion.’”) (citing United States v. Allen, 160 F.3d 1096, 1106 (6th Cir. 1998)); see also Howard
v. Turner, No. 3:13-cv-405 2014 WL 11191049, at *10 (N.D. Ohio Sept. 8, 2014) (enforcing
procedural default based on petitioner’s failure to renew motion to sever at the close of the

State’s evidence, and the appellate court’s subsequent plain error review); Smith v. Warren, No.
1:11-cv-083, 2012 WL 668608, at *11 (S.D. Ohio Feb. 29, 2012) (finding that the Ohio
procedural rule requiring that a severance motion be renewed at the conclusion of the evidence is
firmly established and is an adequate and independent state ground). Further, a state court’s
review for plain error only constitutes an enforcement of the procedural default. Girts v. Yanai,
501 F.3d 743, 755 (6th Cir. 2007) (citing Seymour v. Walker, 224 F. 3rd 542, 557 (6th Cir. 2000)
(plain error review does not constitute a waiver of procedural default); 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). Therefore, Petitioner has waived claim one.

IV. Cause; Claim Two
In claim two, and as cause for his procedural default, Petitioner asserts that he was denied
the effective assistance of trial counsel because his attorney failed to renew the motion to sever at
the close of the State’s evidence. The state appellate court also denied this claim:
Appellant argues that he was denied the effective assistance of counsel. We
disagree.

{¶ 70} More specifically, Appellant argues that his counsel was ineffective in
failing to renew the severance argument.

{¶ 71} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel’s performance fell below an objective standard
of reasonable representation involving a substantial violation of any of defense
counsel’s essential duties to appellant. The second prong is whether the appellant
was prejudiced by counsel’s ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364,
113 S.Ct. 838, 122 L.Ed.2d 180( 1993); Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 ( 1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989).

{¶ 72} In order to warrant a finding that trial counsel was ineffective, the petitioner
must meet both the deficient performance and prejudice prongs of Strickland and
Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d
251 (2009).

{¶ 73} The United States Supreme Court discussed the prejudice prong of the
Strickland test:

With respect to prejudice, a challenger must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104 S.Ct. 2052. It is not enough
“to show that the errors had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id., at 687, 104
S.Ct. 2052.

Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-
assistance claim can function as a way to escape rules of waiver and forfeiture and
raise issues not presented at trial, and so the Strickland standard must be applied
with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the
very adversary process the right to counsel is meant to serve. Strickland, 466 U.S.,
at 689–690, 104 S.Ct. 2052. Even under de novo review, the standard for judging
counsel’s representation is a most deferential one. Unlike a later reviewing court,
the attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the judge. It
is “all too tempting” to “second-guess counsel’s assistance after conviction or
adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685,
702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364,
372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s
representation amounted to incompetence under “prevailing professional norms,”
not whether it deviated from best practices or most common custom. Strickland,
466 U.S., at 690, 104 S.Ct. 2052.

{¶ 74} Harrington v. Richter, 562 U.S. 86, 104–105, 131 S.Ct. 770, 777–778, 178
L.Ed.2d 624 (2011).

{¶ 75} The United States Supreme Court and the Ohio Supreme Court have held a
reviewing court “need not determine whether counsel’s performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373, quoting Strickland,
466 U.S. at 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶ 76} Upon review, and based on our disposition of Assignment of Error I finding
that joinder was proper in this matter and that Appellant was not prejudiced by
same, we find Appellant has failed in his burden to demonstrate a reasonable
probability that, but for counsel’s failure to renew the motion to sever, the result of
the proceeding would have been different.

State v. Kelly, 105 N.E.3d at 539-40.

In all criminal prosecutions,” the Sixth Amendment affords “the accused . . . the right . . .
to Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective
assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing
claims of ineffective assistance of counsel in Strickland, 466 U.S. at 668. Strickland requires a
petitioner claiming the ineffective assistance of counsel to demonstrate that his counsel’s
performance was deficient and that he suffered prejudice as a result. Id. at 687; Hale v. Davis,
512 F. App’x 516, 520 (6th Cir.), cert. denied sub. nom. Hale v. Hoffner, 134 S. Ct. 680 (2013).
A petitioner “show[s] deficient performance by counsel by demonstrating ‘that counsel’s
representation fell below an objective standard of reasonableness.’” Poole v. MacLaren, 547 F.
A’ppx 749, 754 (6th Cir. 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011)
(internal quotation marks omitted)); (citing Strickland, 466 U.S. at 687), cert. denied, 135 S. Ct.
122 (2014). To make such a showing, a petitioner must overcome the “strong [ ] presum[ption]”
that his counsel “rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Strickland, 466 U.S. at 687. “To avoid the warping
effects of hindsight, [courts must] ‘indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” Bigelow v. Haviland, 576 F.3d
284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
This Court considers Petitioner’s claim of ineffective assistance of counsel de novo when
determining whether Petitioner can establish cause for his procedural default. See Hively v.
Warden, No. 2:17-cv-222, 2018 WL 722864, at *7 (S.D. Ohio Feb. 5, 2018) (citing Hall v.
Vasbinder, 563 F.3d 222, 236-37 (6th Cir. 2009) (“An argument that ineffective assistance of
counsel should excuse a procedural default is treated differently than a free-standing claim of

ineffective assistance of counsel. The latter must meet the higher AEDPA standard of review,
while the former need not.”) Nonetheless, the record reflects that Petitioner cannot establish a
claim of ineffective assistance of counsel under the Strickland test.
The appellate court found that the trial court’s decision denying the request for a
severance complied with Ohio law. This Court is bound by that determination. See Brenson v.
Coleman, 680 F. App’x 405, 409 (6th Cir. 2017) (“[W]hether a severance is appropriate lies
within the discretion of the trial court.”); Veliev v. Warden, Chillicothe Corr. Inst., No. 2:12-cv-
00346, 2014 WL 4805292, at *13 (S.D. Ohio Sept. 26, 2014) (citing Miskel v. Karnes, 397 F.3d
446, 453 (6th Cir. 2005) ) (this court must “defer to a state court’s interpretation of its own rules

of evidence and procedure”) (citations omitted); Bennett v. Warden, Lebanon Corr. Inst., 782 F.
Supp. 2d 466, 478 (S.D. Ohio March 15, 2011) (“[T]he state courts are the final authority on
state-law issues, the federal habeas court must defer to and is bound by the state court’s rulings
on such matters.”) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the
province of a federal habeas court to re-examine state-court determinations on state law
questions.”)). Further, the record does not reflect that the trial court’s decision violated federal
law. “[A] criminal defendant has no constitutional right to severance unless there is a strong
showing of prejudice caused by the joint trial.” Fox v. Ward, 200 F.3d 1286, 1292 (10th Cir.
2000) (citation omitted); see also Cardenas-Borbon v. Burt, No. 10-13548, 2014 WL 793629, at
*14 (E.D. Mich. Feb. 27, 2014) (“As a general matter, there is no constitutional right to
severance.”) To the contrary, federal law prefers joint trials of co-defendants because it
promotes efficiency and serves “the interests of justice by avoiding the scandal and inequity of
inconsistent verdicts.” Zafiro v. United States, 506 U.S. 534, 537 (1993). A trial court’s failure
to grant a motion for severance of co-defendants’ trials amounts to a violation of due process

only where there exists a “serious risk that a joint trial would . . . prevent the jury from making a
reliable judgment about guilt or innocence.” Cardenas-Borbon, 2014 WL 793629, at *14
(quoting Zafiro, 506 U.S. at 539). Petitioner does not allege, and the record does not reflect that
these are the circumstances here. Moreover,
[a] defendant is not entitled to severance merely because he might have had a better
chance of acquittal in a separate trial. See Zafiro v. United States, 506 U.S. 534,
540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Nor does he have a right to a separate
trial merely because defendants present antagonistic defenses. See United States v.
Day, 789 F.2d 1217, 1224 (6th Cir. 1986) (holding that absent some indication that
the alleged antagonistic defendants misled or confused the jury, the mere fact that
co-defendants blame each other does not compel severance). Courts should grant a
severance “only if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. 933.
Granting or denying severance is within the trial judge’s discretion. See Glinsey v.
Parker, 491 F.2d 337, 343 (6th Cir.1974). And, a state trial court’s alleged abuse
of discretion, without more, is not a constitutional violation. See Sinistaj v. Burt, 66
F.3d 804, 805, 808 (6th Cir. 1995).

Standford v. Parker, 266 F.3d 442, 458-59 (6th Cir. 2001).

[S]everance is generally mandated only in three situations: (1) where there is
compelling evidence admitted against a codefendant which would not otherwise be
admissible against the defendant; (2) where the sheer number of defendants and
charges makes it impossible for the jury to separate the issues involved; and (3)
where the defendant’s involvement in the crime is significantly different in scope
or magnitude from that of his codefendants. See United States v. Blankenship, 382
F.3d 1110, 1123–25 (11th Cir. 2004).

Cardenas-Borbon, 2014 WL 793629, at *14.
Petitioner maintains that the trial court violated his due process rights when it denied his
request for a severance of trials because most of the evidence presented by the prosecution
implicated his co-defendant, unduly prejudicing the Petitioner, and due to admission of evidence
regarding Conley’s involvement in a prior double homicide. Still, the record does not indicate
state or federal law mandated a severance of trials on this basis. Moreover, evidence indicated

that, less than an hour after Gervins’ murder, Petitioner told Dantzler that he had just been with
co-defendant “Twice” and had “shot a little deer.” State v. Kelly, 105 N.E.3d at 534. Petitioner
told Rayford that he had shot Gervins and Gervins had to be killed because Gervins “was going
‘to tell on some shit that went down.’” Petitioner has failed to establish that he was denied the
effective assistance of counsel based on his attorney’s failure to renew the motion for a
severance at the close of the State’s case. He likewise has failed to establish cause for his
procedural default of claim one.
V. Claims Three, Four, Five, and Six
Petitioner asserts that the evidence is constitutionally insufficient to sustain his

convictions and that his convictions are against the manifest weight of the evidence.
The latter claim does not provide a basis for federal habeas corpus relief. See Taylor v.
Warden, Lebanon Corr. Inst., No. 2:16-cv-237, 2017 WL 1163858, at *10 (S.D. Ohio March 29,
2017) (citing Williams v. Jenkins, No. 1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb.
22, 2016)) (citing Nash v. Eberlin, 258 F. App’x 761, 765, n. 4 (6th Cir. 2007)); Norton v. Sloan,
No. 1:16-cv-854, 2016 WL 525561, at *5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No.
3:10-cv-391, 2011 WL 1337102, at *3 (S.D. Ohio)) (“Whether a conviction is against the
manifest weight of the evidence is purely a question of Ohio law.”).
Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—
as opposed to one based upon insufficient evidence—requires the appellate court to act as a
“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility
of witnesses to determine whether “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.” State v.

Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Because a
federal habeas court does not function as an additional state appellate court that is vested with the
authority to conduct such an exhaustive review, Petitioner’s claim that his convictions are against
the manifest weight of the evidence cannot be considered by this Court.
The state appellate court rejected Petitioner’s claim of insufficiency of the evidence in
relevant part as follows:
{¶ 79} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). “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.” Jenks at paragraph two of the syllabus, following
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review
for manifest weight, a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “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.” State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist. 1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-
Ohio-52, 678 N.E.2d 541. The granting of a new trial “should be exercised only in
the exceptional case in which the evidence weighs heavily against the conviction.”
Martin at 175, 485 N.E.2d 717.

¶ 80} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967). The trier of fact “has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on
the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260, 674
N.E.2d 1159.
{¶ 81} Appellant was convicted of murder, in violation of R.C. § 2903.02(A),
which states:

(A) No person shall purposely cause the death of another or the unlawful
termination of another’s pregnancy.

{¶ 82} Appellant was also convicted of intimidation, in violation of R.C. §
2921.04(B)(2), having weapons while under disability and firearm specifications.

{¶ 83} Upon review, we find that while Appellant does state in his Assignment of
Error that he is challenging these convictions, he does not address these convictions
separately in his argument. Pursuant to App.R. 12(A)(2), this Court may disregard
an assignment of error if the party raising it fails to argue the assignment separately
in his or her brief, as required by App.R. 16. This Court has no duty to rule on
assignments of error that are not adequately briefed. In re Brown (1989), 60 Ohio
App.3d 136, 139, 573 N.E.2d 1217; North Coast Cookies, Inc. v. Sweet
Temptations, Inc. (1984), 16 Ohio App.3d 342, 476 N.E.2d 388; also see Newburgh
Heights v. Wheatley (Oct. 29, 1998), Cuyahoga App. No. 72422, unreported. We
therefore decline, in the absence of any argument or citation to legal authority, to
address Appellant’s challenge to his convictions on the intimidation, having
weapons while under disability and firearm specification counts other than as they
relate to his murder conviction.

{¶ 84} Appellant, in the case sub judice, argues that the only evidence against him
were the cell phone records indicating that his phone was in the vicinity of the
shooting when it occurred and his jail telephone call with Dantzler. Appellant
argues that his alleged statements to Rayford admitting that he killed Gervins were
fabrications.

{¶ 85} Upon review, this Court finds based on the testimony and evidence
presented at trial as set forth above, that the State presented proof beyond a
reasonable doubt that Appellant was guilty of the murder of Dontee Gervins.

{¶ 86} The jury heard testimony from Lamonte Rayford that Appellant admitted to
him that he was involved in Gervins’ murder. Further, evidence was presented as
to cell phone tower data which placed Appellant, his co-defendant Conley and
Gervins together in Delaware County. There was also ample evidence presented
that Gervins was the only witness to the Gault Street shootings who could have
testified against Jonathan Dantzler, who was in jail awaiting trial, and who could
identify and inform the police that Appellant was also involved those shootings.
Appellant also received a call from Dantzler, who is Appellant’s brother, from the
jail less than an hour after Gervins was shot. During this call Appellant informed
his brother that he was “just with Twice” and that they “got [sic] a little deer” and
that he “hope they shoot good.” (T. at 1168–1169).
{¶ 87} The jury also heard ample evidence as to motive in this case. As stated
above, Gervins could identify co-defendant Conley, Appellant’s cousin, as one of
the shootings in the Gault Street crimes and could testify against Dantzler,
Appellant’s brother.

{¶ 88} The jury was free to accept or reject any and all of the evidence offered by
the parties and assess the witnesses’ credibility. “While the jury may take note of
the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. McGregor, 5th Dist. Ashland No. 15-COA-
023, 2016-Ohio-3082, 2016 WL 2942992, ¶ 10, citing State v. Craig, 10th Dist.
Franklin No. 99AP–739, 2000 WL 297252 (Mar. 23, 2000). Indeed, the jurors need
not believe all of a witness’ testimony, but may accept only portions of it as true.
Id. Our review of the entire record reveals no significant inconsistencies or other
conflicts in the State’s evidence which would demonstrate a lack of credibility of
the witnesses sufficient to find the jury lost its way to finding Appellant guilty.

{¶ 89} Based on the foregoing, together with all of the evidence presented, we find
that Appellant’s murder conviction was supported by sufficient evidence and that
the jury did not lose its way in finding Appellant guilty beyond a reasonable doubt.

***

Appellant argues that his convictions on the criminal gang specifications were
against the [] sufficiency of the evidence.

{¶ 92} A gang specification under R.C. § 2941.142 mandates a prison term of one,
two, or three years on an offender who commits a felony “that is an offense of
violence while participating in a criminal gang.”

{¶ 93} Regarding the existence of a criminal gang requirement of the gang
specification, the state must prove that the “persons in the organization, association,
or group individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” R.C. 2923.41(A)(3). See State v. Johnson, 10th Dist. No.
07AP-538, 2008-Ohio-590, 2008 WL 384231, ¶ 41 (vacating the appellant’s
conviction on gang specification because of insufficient evidence for jury to find
pattern of criminal gang activity due to absence of testimony that members of the
appellant’s gang committed any of the type of crimes listed in R.C. 2923.41(B)(1)
); State v. Bickerstaff, 7th Dist. No. 09 JE 33, 2011-Ohio-1345, 2011 WL 1004925,
¶ 58–60 (finding sufficient evidence to establish pattern of criminal gang activity
based on police detective and gang member testimony outlining the felony offenses
committed by members of the appellant’s gang). Further, the state must
demonstrate the offense of violence was committed while participating in that
criminal gang. See State v. Smith, 6th Dist. No. L-15-1027, 2017-Ohio-776, 2017
WL 837080, ¶ 49–50 (finding sufficient evidence to support conclusion that the
offenses were committed while the appellant participated in a criminal gang based
on testimony regarding local gang culture, the appellant’s affiliation with a criminal
gang, and the connection between violence and gang status); State v. Yates, 8th
Dist. No. 96774, 2012-Ohio-919, 2012 WL 759201, ¶ 22 (finding sufficient
evidence that shooting was related to gang activity where the appellant and other
criminal gang members were “patrolling their territory” in a vehicle when “they
came upon the [pedestrian] victims” and the appellant “exchanged words” with one
of the pedestrians before shooting). Thus, gang-related testimony is not only
relevant but necessary for the state to prove a gang specification.

{¶ 94} In the instant case, to prove the gang specification, the state needed to show
that Appellant committed the murder “while participating in a criminal gang.” See
R.C. § 2941.142. Here, evidence demonstrated that Jonathan Dantzler, Richard
Bland, Reginald Conley and Lamonte Rayford were members of a gang known as
the “ATM Crips” and that such gang is a criminal gang. Conley and Dantzler both
have ATM Crips tattoos. Appellant is the brother of Dantzler and cousin of Conley.
The jury found Appellant complicit in the murder of Gervins. Testimony was
presented that Gervin’s murder was committed to prevent him from testifying
against Conley and Dantzler for their roles in the Gault Street shootings.

{¶ 95} Collectively, evidence of the above facts reasonably demonstrates that
Appellant committed or was complicit in the act of murder, at least in part, for the
purpose of assisting and/or furthering the interests of a criminal gang. Therefore,
sufficient evidence was presented at trial for the jury to find that the shooting
occurred while Appellant was participating in a criminal gang.

{¶ 96} For these reasons, we find that sufficient evidence supported Appellant’s
criminal gang specification convictions[.]

State v. Kelly, 105 N.E.3d at 540-43.

a. Waiver

Petitioner has waived his claim of insufficiency of evidence as it applies to his
convictions on intimidation, having a weapon while under disability, and firearm specification
counts, except as applied to his murder conviction, due to his failure to separately brief the issues
as required under Ohio Appellate Rule 16.1 The state appellate court explicitly enforced this

1 Rule 16(A) provides:

(A) Brief of the Appellant. The appellant shall include in its brief, under the
headings and in the order indicated, all of the following:
state procedural rule when it refused to addressed the merits of his claims under Rule 12(A)(2) of
the Ohio Rules of Appellate Procedure, providing the appellate court may disregard an
assignment of error if the party raising it fails to identify in the record the error on which the
assignment of error is based or fails to argue the assignment separately in the brief as required
under App.R. 16(A). Ohio App. R. 12(A)(2). Petitioner has thereby procedurally defaulted

these claims for review in these proceedings. See Campbell v. Bunting, No. 1:14-cv-1187, 2015
WL 4984871, at * (N.D. Ohio Aug. 19, 2015) (Ohio Appellate Rule 16 is an adequate and
independent ground of decision) (citations omitted); Boynton v. Sheets, No. 1:11-cv-2810, 2013
WL 1742711, at *11 (N.D. Ohio March 5, 2013) (enforcing this same procedural default).
Petitioner has failed to establish cause for his procedural default. This Court will not address
Petitioner’s claim of insufficiency of the evidence, except as it applies to his murder conviction.

(1) A table of contents, with page references.
(2) A table of cases alphabetically arranged, statutes, and other authorities cited,
with references to the pages of the brief where cited.

(3) A statement of the assignments of error presented for review, with reference to
the place in the record where each error is reflected.

(4) A statement of the issues presented for review, with references to the
assignments of error to which each issue relates.

(5) A statement of the case briefly describing the nature of the case, the course of
proceedings, and the disposition in the court below.

(6) A statement of facts relevant to the assignments of error presented for review,
with appropriate references to the record in accordance with division (D) of this
rule.

(7) An argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies. The argument may be preceded by a summary.

(8) A conclusion briefly stating the precise relief sought.
b. Merits
A criminal defendant may only can be convicted consistent with the United States
Constitution if there is sufficient evidence to justify a reasonable trier of fact to find guilt beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining whether the
evidence was sufficient to support a petitioner’s conviction, a federal habeas court must view the

evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296
(1992) (citing Jackson, 443 U.S. at 319). The prosecution is not affirmatively required to “rule
out every hypothesis except that of guilt.” Id. (quoting Jackson, 443 U.S. at 326). “[A]
reviewing court ‘faced with a record that supports conflicting inferences must presume—even if
it does not appear on the record—that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” Id. (quoting Jackson, at 326).
Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), deference must be given, first, to the jury’s finding of guilt because the

standard, announced in Jackson v. Virginia, is 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.” Second, and even if a de novo
review of the evidence leads to the conclusion that no rational trier of fact could have so found, a
federal habeas court “must still defer to the state appellate court’s sufficiency determination as
long as it is not unreasonable.” White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This Court
may grant relief on petitioner’s claim only if the state appellate court was “‘objectively
unreasonable’ in concluding that a rational trier of fact could have found [petitioner] guilty
beyond a reasonable doubt.” Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir. 2008). This is a
substantial hurdle for a habeas petitioner to overcome, and Petitioner has failed to do so here.
Petitioner argues that the State failed to establish he had any motive to kill Gervins and
presented only ambiguous or incredible circumstantial evidence of guilt. Petitioner also argues
that the State failed to produce any evidence establishing his guilt of the gang specification under

O.R.C. § 2941.142. (See Traverse, ECF No. 15, PAGEID # 2270-71.) In view of the facts set
forth by the Ohio Court of Appeals, this Court does not agree. To the contrary, when viewing
the evidence in the light most favorable to the prosecution, this Court agrees that the evidence is
constitutionally sufficient to sustain Petitioner’s convictions. Further, circumstantial evidence
alone will be sufficient to support a conviction. See Gipson v. Sheldon, 659 F. App’x 871, 877
(6th Cir. 2016) (citing Holland v. United States, 348 U.S. 121, 139-40 (1954); Tucker v. Palmer,
541 F.3d 652, 657 (6th Cir. 2008)). Here, as discussed, the State introduced Petitioner’s own
incriminating statements admitting his involvement in Gervins’ murder. Petitioner has failed to
establish that the state appellate court contravened or unreasonably applied federal law when it

rejected Petitioner’s claim of insufficiency of the evidence.
Petitioner’s claim of insufficiency of the evidence is without merit.
VI. Recommended Disposition
For the reasons set forth above, it therefore is RECOMMENDED that this action be
DISMISSED.
Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or
in part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

_s/ Elizabeth A. Preston Deavers__
Elizabeth A. Preston Deavers
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374342. Public record. Not legal advice.