Dixon v. Warden, Lebanon Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DEANDRE D. DIXON,

Petitioner, : Case No.3:20-cv-383

- vs - District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

CHAE HARRIS, Warden,

Lebanon Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Deandre Dixon, is before the Court

for initial review under Rule 4 of the Rules Governing § 2254 Cases which provides that the clerk

must promptly forward the petition to a judge under the court’s assignment procedure, and the

judge must promptly examine it. If it plainly appears from the petition and any attached exhibits

that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition

and direct the clerk to notify the petitioner.

The Court’s regular assignment procedures include a venue provision requiring habeas

corpus cases to be considered at the seat of court serving the county in which a petitioner was

convicted. Because Dixon was convicted in the Montgomery County Court of Common Pleas,

Magistrate Judge Litkovitz transferred the case from Cincinnati to Dayton where it was randomly

assigned to District Judge Douglas Cole. The case was then automatically referred to the

undersigned under General Order Day 13-01.

Factual Background

The Second District Court of Appeals stated the background facts of the case as follows:

[*P3] The present appeal stems from the shooting death of Gregory

Moses on the night of December 2, 2016. At the time of his death,

Moses was involved in a romantic but volatile relationship with a

woman named Michelle Edwards. They were living together, and

they fought and argued regularly. While still residing with Moses,

Edwards met appellant Dixon in November 2016. Edwards and

Dixon began dating and became intimately involved.

[*P4] On December 1, 2016, Edwards spent the night with Dixon

at his mother's house. The following morning, Dixon dropped

Edwards off down the street from Moses' house. She walked to the

house and found her clothes and other belongings outside. Edwards

confronted Moses, who brought the items back inside. Later that

day, Dixon called Edwards while she was at Moses' house. Edwards

told Dixon that she loved him. Moses responded by telling Edwards

to "get the F out." He threw her belongings outside again and poured

bleach on them.

[*P5] That evening, Edwards went out drinking with her sister,

Quayshawn. While at a nightclub, she spoke to Dixon on her cell

phone shortly after 10:00 p.m. She mentioned her belongings being

put outside earlier in the day but told Dixon that she still loved

Moses. Dixon responded by cursing and threatening to kill Moses.

Edwards did not take the threat seriously. Shortly after Edwards

finished speaking to Dixon, his cell phone began "pinging" off of

cell towers as it moved north away from his mother's house and

toward Dixon's home. Twenty-five minutes later, Dixon's cell phone

"pinged" off of the cell tower that serviced Moses' home. Edwards

then spoke to Dixon again around 11:30 p.m. He told her he had

taken care of everything.

[*P6] Moses' friend Anthony Ivery called Moses around 11:37

p.m., but the call went to voicemail. Ivery then drove to Moses'

house so the two men could go out together. When he arrived, Ivery

saw that the front door was open and there were several bullet holes

in the glass screen door. Ivery found Moses' body on the floor inside

the door. Moses had been shot in the shoulder and the head. Police

identified Dixon as a suspect several hours later. Dixon fled on foot

when police arrived at his mother's house to arrest him. As he ran,

he dropped a bag containing two .38 caliber revolvers and several

rounds of ammunition. A forensic firearms examiner determined

that one of the revolvers was the weapon that fired a bullet recovered

from the back of Moses' skull.

State v. Dixon, 2019-Ohio-231 (Ohio App. 2d Dist. Jan. 25, 2019).

Litigation History

According to Dixon, he was convicted by a jury of murder, felonious assault, discharging

a firearm into a habitation, carrying a concealed weapon, and having a weapon while under a

disability1 (Petition, ECF No. 1, PageID 1). On October 17, 2017, he was sentenced to twenty-

seven years to life imprisonment. Id. He then appealed to the Ohio Second District Court of

Appeals which affirmed his conviction. State v. Dixon, 2019-Ohio-231 (Ohio App. 2d Dist. Jan.

25, 2019). The Supreme Court of Ohio declined appellate jurisdiction. State v. Dixon, 2019-Ohio-

3505. Dixon then filed the instant Petition by depositing it in the prison mail system September

2, 2020 (Petition, ECF No. 1, PageID 14).

The Petition

Dixon plead the following Grounds for Relief:

Ground One: Trial Counsel was Ineffective by Failure to Provide

Notice of Intention to Use 404 Evidence.

1 Dixon’s Third Ground for Relief suggests he is challenging convictions not listed at this place in the Petition.

Supporting Facts: Trial counsel violated the Sixth and Fourteenth

Amendment[s] when he failed to provide notice of intention to use

404 evidence, which would have impeached State’s main witness

and shown evidence of motive for other person to have committed

the murder.

Ground Two: Issuance of search warrant violated Mr. Dixon’s

Fourth Amendment right and due process.

Supporting Facts: Mr. Dixon’s right [against] unreasonable

searchs [sic] and seizure was violated when his location was

recovered through a warrant citing exigent circumstances and

detective falsifying information stating “witnesses are afraid of

retaliation and harm” when there was [sic] no witnesses to the

crime, before securing a search warrant.

Ground Three: Mr. Dixon’s convictions were against the manifest

weight of the evidence, and insufficient to support his conviction,

violating due process.

Supporting Facts: The evidence was insufficient to satisfy all the

elements of felonious assault, murder, improper discharge of a

firearm, weapons under disability, specification for weapon,

specification for repeat violent offender, violating the Due Process

Clause of the United States [Constitution].

(Petition, ECF No. 1, PageID 5, 7, and 8.)

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Dixon claims his trial attorney provided ineffective

assistance of trial counsel when he failed to give the notice required by Ohio criminal procedure

of his intention to use evidence of the type described in Ohio R. Evid. 404.

The Sixth Amendment to the United States Constitution, made applicable to the States by

the Due Process Clause of the Fourteenth Amendment, guarantees every criminal defendant the

effective assistance of an attorney in his or her defense. The governing standard for ineffective

assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is 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 overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.

86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

Dixon raised his claim of ineffective assistance of trial counsel in his First Assignment of

Error on appeal and the Second District decided it as follows:

[*P8] In his first assignment of error, Dixon alleges ineffective

assistance of trial counsel. He contends his attorney provided

deficient representation by failing to give timely notice of intent to

introduce other-acts evidence under Evid.R. 404(B).

[*P9] The record reflects that Dixon wanted to cross examine

Edwards about information contained in police reports involving

four prior incidents between herself and Moses. (Trial Tr. Vol. I at

213-216) [footnote omitted]. These incidents occurred in April

2014, June 2014, and May 2015. One of them involved Moses

throwing Edwards' belongings out of their apartment. Another

involved Edwards threatening Moses with a knife. Defense counsel

argued that these incidents demonstrated the volatile nature of their

relationship and that the information was relevant to Edwards'

credibility and reliability. (Id.). The State objected on two grounds:

(1) Evid.R. 404(B) requires the proponent of other-acts evidence to

give reasonable advance notice unless excused for good cause and

(2) the proposed evidence was not relevant to what happened on

December 2, 2016. (Id. at 215-216). After considering the parties'

arguments, the trial court sustained the State's objection on the

grounds that the "police reports are too far removed and do not

comply with the rules." (Trial Tr. Vol. II at 222).

[*P10] Upon review, we see no error in the trial court's ruling and

no ineffective assistance of counsel. In our view the trial court's

statement that the police reports were "too far removed" appears to

be a finding that those prior incidents were not sufficiently relevant

to the issues in this case. That being so, even if defense counsel had

provided advance notice of the other-acts evidence he wanted to

introduce, the trial court still would have excluded it for lack of

relevance. Thus, Dixon cannot establish prejudice from counsel's

failure to bring the police reports to the trial court's attention sooner.

[*P11] We also see no abuse of discretion in the trial court's

determination that the proposed evidence was "too far removed"

from the issues in this case to be admissible. Dixon contends on

appeal that the four prior incidents were relevant to Edwards'

credibility and her motive for incriminating him. But these prior

incidents occurred between one and one-half and two and one-half

years before the events in this case. The trial court reasonably could

have concluded that this distant evidence had little bearing on

Edwards' credibility as a witness or her motive for testifying against

Dixon. Moreover, in conjunction with the ruling about the prior

reports, the court also ruled that defense counsel could inquire of

Edwards whether she was initially considered a suspect and was

Mirandized by police in their initial contact. We note too that

defense counsel did cross examine Edwards about more recent

arguments and "violent talk" involving her and Moses in November

and December 2016. (Id. at 229-230). This evidence included a

threat by Edwards to have her brothers "F up" Moses. (Id. at 230).

[*P12] In short, because the trial court acted within its discretion

in excluding the proposed other-acts evidence on relevance grounds,

and permitted other evidence about the volatile relationship and the

suspicions about Edwards, Dixon was not prejudiced by his

attorney's failure to bring the Evid.R. 404(B) evidence to the trial

court's attention sooner. Accordingly, his ineffective-assistance

claim fails. The first assignment of error is overruled.

Dixon, 2019-Ohio-231.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

In this instance the Second District applied, albeit without explicit citation, the two-prong

Strickland standard. Because the requirement to provide advance notice of the intent to use other

acts evidence under Ohio R. Evid. 404 is a well-recognized requirement of Ohio law, Dixon’s trial

counsel’s failure to give notice constituted deficient performance, satisfying the first prong of

Strickland. However, because the evidence was too remote to be relevant and was also excludable

and excluded on that alternative basis, Dixon was not prejudiced by his attorney’s failure to give

advance notice. In other words, even if notice had been given, the other acts evidence would have

been excluded as irrelevant because too remote.

The Second District’s decision on the First Assignment of Error is not an objectively

unreasonable application of Strickland because the evidence was inadmissible on an alternative

basis, one on which both the trial court and the Second District relied. The Second District’s

decision on this issue is therefore entitled to deference and Dixon’s First Ground for Relief should

be dismissed.

Ground Two: Unconstitutional Search in Violation of the Fourth Amendment

In his Second Ground for Relief, Dixon asserts his right under the Fourth Amendment to

be free from unreasonable searches and seizures was violated by the issuance of the search warrant

in this case.

Although a person’s right to be free from unreasonable searches and seizures is protected

by the Fourth Amendment and the federal writ of habeas corpus exists to enforce constitutional

rights as they are implicated in state criminal convictions, relief is not available to state prisoners

who allege they were convicted on illegally seized evidence if they were given a full and fair

opportunity to litigate that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976).

Stone requires the district court to determine whether state procedure in the abstract provides full

and fair opportunity to litigate, and Ohio procedure does. The district court must also decide if a

Petitioner's presentation of claim was frustrated because of a failure of the state mechanism.

Habeas relief is allowed if an unanticipated and unforeseeable application of a procedural rule

prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley

court, in discussing the concept of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of

Fourth Amendment claims is, in the abstract, clearly adequate. Ohio

R. Crim. P. 12 provides an adequate opportunity to raise Fourth

Amendment claims in the context of a pretrial motion to suppress,

as is evident in the petitioner’s use of that procedure. Further, a

criminal defendant, who has unsuccessfully sought to suppress

evidence, may take a direct appeal of that order, as of right, by filing

a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.

5(A). These rules provide an adequate procedural mechanism for the

litigation of Fourth Amendment claims because the state affords a

litigant an opportunity to raise his claims in a fact-finding hearing

and on direct appeal of an unfavorable decision.

Id. at 526.

In this case Dixon received a full hearing in the trial court on his motion to suppress,

followed by a written opinion of the trial judge making findings that could be reviewed on appeal.

Then the Second District considered Dixon’s Fourth Amendment claim as his Second Assignment

of Error and decided it as follows:

[*P13] In his second assignment of error, Dixon challenges the trial

court's denial of a pre-trial suppression motion. He contends a search

warrant affidavit was defective because it was based on information

supplied by Edwards, who was not shown to be a reliable source.

[*P14] The record reflects that police actually obtained four search

warrants in this case. [footnote omitted] Although the supporting

affidavits contained some differing information, each affidavit

contained the same facts obtained from Edwards. As noted by the

trial court in its written decision (Doc. #44), each affidavit included

the following averments by Detective Walter Steele:

On 12/2/16 (Fri) at approximately 2348 hours, Harrison

Twp. Deputies were dispatched to 3733 Haney Rd. in

Harrison Township reference to an unresponsive male.

Upon arrival, Deputies located a black male, later

identified as Gregory Moses, deceased just inside the door

of the residence. Moses had been shot in his body

succumbing to his injuries from apparent gunshot wounds.

There were at least 5 bullet holes in the front "storm" door

appearing the suspect fired from outside striking the victim

while he was still inside the residence. There were no

casings found at the scene. The residence was processed by

E.V. and Moses' body was removed by the coroner's office.

Detectives shortly later located Moses' girlfriend Michelle

Edwards and interviewed her at Special Investigations.

Edwards relayed she had been at 2 bars throughout the

evening and had conversations over the phone with a

subject identified as Deandre Dixon who she had current

intimate relations with. Dixon was angry over a rocky

relationship that Edwards had with Moses.

Edwards stated that she felt that Dixon was responsible for

Moses' murder due to Dixon telling her over the phone

shortly before the murder, "I'll kill his lame ass." Edwards

also stated that she again spoke with Dixon over the phone

around the time of the murder and Dixon relayed to her, "I

took care of everything." Edwards stated that she was

unsure at the time what Dixon meant by this. She said

during these conversations with Dixon, he appeared to be

intoxicated and sounded angry. Edwards provided Dixons

cell phone number of 937-[xxx]-6390.

Dixon's cell was "pinged" using exigent circumstances and

he showed to be in the area of 425 N. Orchard Ave. in the

city of Dayton. Edwards confirmed that this address is

where Dixon had been staying. She further provided that

Dixon drove a black Tahoe. A black Tahoe bearing Ohio

registration GSW2275 was located parked south of the

residence.

(Doc. #44 at 2).

[*P15] On appeal, Dixon's entire substantive argument is as

follows:

* * * The only information provided by Ms. Edwards that

was confirmed was Mr. Dixon's location and the model of

vehicle that he drove. The information did not relate to the

likelihood of criminal activity.

Detective Steele essentially made the determination

regarding whether probable cause existed to issue a warrant

because no information was included in the affidavit to

support the credibility of the information.

Therefore, the Court erred in overruling Mr. Dixon's

Motion to Suppress because there was not probable cause

to issue a warrant.

(Appellant's brief at 21).

[*P16] Because Dixon only challenges Steele's affidavit on the

basis that it did not attest to or demonstrate Edwards' credibility or

reliability, we will confine our analysis to that issue [footnote

omitted]

In its ruling, the trial court concluded that Edwards "was an

'identified citizen informant' and sufficiently reliable to support the

issuing judge's probable cause determination." (Doc. #44 at 2). We

agree with this determination.

[*P17] Unlike an anonymous source or an unnamed confidential

informant, Edwards was named and identified in the search warrant

affidavit. It is well settled that information supplied by an "identified

citizen informant" is treated as being more reliable than information

obtained from other types of informants and may be presumed

reliable, particularly where the citizen provides her basis of

knowledge. Maumee v. Weisner, 87 Ohio St.3d 295, 300-301, 1999-

Ohio 68, 720 N.E.2d 507 (1999); see also State v. Garner, 74 Ohio

St.3d 49, 63, 1995- Ohio 168, 656 N.E.2d 623 (1995) ("Information

coming from a citizen eyewitness is presumed credible and reliable,

and supplies a basis for a finding of probable cause in compliance

with") Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d

527 (1983).

[*P18] Here police themselves initiated contact with Edwards, who

told them about her conversations with Dixon and provided her basis

of knowledge. She also explained the nature of her relationship with

Dixon, gave police his cell phone number, and told them where he

lived and what vehicle he drove. Under the totality of the

circumstances, the information Edwards provided was sufficiently

reliable to support the issuance of a search warrant. Accordingly, the

second assignment of error is overruled.

Dixon, 2019-Ohio-231.

Because Ohio law provides an adequate opportunity to present Fourth Amendment issues,

Dixon used that opportunity, and the Ohio courts fairly and thoroughly considered the claims he

raised, habeas corpus review of Dixon’s Fourth Amendment claims is barred by Stone v. Powell

and should be dismissed.

Ground Three: Convictions Based on Insufficient Evidence

In his Third Ground for Relief, Dixon asserts his convictions for felonious assault, murder,

improper discharge of a firearm, weapons under disability, specification for weapon, and

specification for repeat violent offender2 are against the manifest weight of the evidence and based

on constitutionally insufficient evidence.

Dixon’s manifest weight claim does not state a claim for relief under the United States

Constitution and therefore will not be considered here. Johnson v. Havener, 534 F.2d 1232 (6th

Cir. 1986).

However, an allegation that a verdict was entered upon insufficient evidence does state a

claim under the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970);

Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th

Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the

crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

2 See footnote 1 above.

which determines the elements of offenses; but once the State has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

In his Petition, Dixon challenges the sufficiency of the evidence for his convictions of

felonious assault, murder, improper discharge of a firearm, weapons under disability, the

specification for use of a firearm, and the specification for being a repeat violent offender (Petition,

ECF No. 1, PageID 8). Although Dixon raised only a manifest weight of the evidence claim in

the Second District, the Court treats that as sufficient to preserve his insufficient evidence claim

for habeas review. However, a state court finding that the verdict is not against the manifest weight

of the evidence implicitly also holds that there is sufficient evidence. Nash v. Eberlin, 258 Fed.

Appx. 761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-

1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden,

No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.).

Dixon raised his weight of the evidence claim as his Third Assignment of Error on direct

appeal and the Second District decided it as follows:

[*P19] In his third assignment of error, Dixon contends his

convictions were against the manifest weight of the evidence.

[*P20] Dixon notes that there were no eyewitnesses to the shooting

of Moses. He also asserts that cell phone "ping" data can be

inaccurate. In addition, although bullets recovered from the crime

scene were fired from one of the guns Dixon discarded, he contends

there was no evidence that he possessed the gun when it was fired.

Finally, Dixon notes that Edwards did not take his threat about

killing Moses seriously and that Edwards' sister, Quayshawn, also

made a death threat in a text message to Moses.

[*P21] When a conviction is challenged on appeal as being against

the weight of the evidence, an appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in

the evidence, the trier of fact "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. Thompkins, 78 Ohio St.3d

380, 387, 1997- Ohio 52, 678 N.E.2d 541 (1997). A judgment

should be reversed as being against the manifest weight of the

evidence "only in the exceptional case in which the evidence weighs

heavily against the conviction." State v. Martin, 20 Ohio App.3d

172, 175, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983).

[*P22] With the foregoing standards in mind, we conclude that

Dixon's convictions were not against the weight of the evidence.

While it is true that no one saw Dixon kill Moses, a murder

conviction may be based entirely on circumstantial evidence. State

v. Brown, 2d Dist. Montgomery No. 27820, 2018-Ohio-4448, ¶ 23.

Here the circumstantial evidence of Dixon's guilt was compelling.

Edwards testified that Dixon threatened to kill Moses when she

spoke to Dixon on the telephone. Records from Edwards' and

Dixon's cell phones show that this conversation occurred around

10:22 p.m. Analysis of "ping" data showed Dixon's cell phone then

moving from his mother's house toward Moses' residence. Shortly

thereafter, Dixon's cell phone "pinged" off of the cell tower that

serviced Moses' residence. Dixon's cell phone then began moving

back toward his mother's house. Phone records showed calls

between Edwards and Dixon during this time, and Edwards testified

that he told her, "I have took [sic] care of everything." Anthony

Ivery found Moses shot dead at around 11:49 p.m. A few hours later,

Dixon ran and dropped a bag when police tried to arrest him. Inside

the bag was a gun that a forensic expert testified had fired a bullet

removed from Moses' skull.

[*P23] Despite the strong evidence of his guilt, Dixon notes that

cell phone "ping" data can be inaccurate, a point that his counsel

argued to the jury. He also notes that his possession of the murder

weapon does not mean he necessarily was the killer. While this is

true, it was reasonable for the jury to infer that Dixon was the killer

based on all of the evidence presented. As for the threatening text

message from Edwards' sister, cell phone records corroborated

testimony from Edwards and Quayshawn that they were together at

a bar when Moses was shot. Therefore, the jury reasonably could

have concluded that Quayshawn was not the killer despite her threat.

[*P24] We conclude that this is not an exceptional case in which

the evidence weighs heavily against Dixon's convictions, and the

jury did not clearly lose its way in finding him guilty. The third

assignment of error is overruled.

Dixon, 2019-Ohio-231.

The Second District did not discuss Dixon’s convictions separately and neither does he in

his Petition. Dixon does not dispute that Moses was murdered by someone who shot him through

the storm door of his residence. He does not dispute that, per forensic evidence, the bullet

recovered from Moses’ skull had been fired from a gun that was in his possession when he was

arrested. He does not dispute that he had a prior felony conviction and that it was for a violent

offense. Dixon’s whole defense was asserting someone else had done the killing. But the facts he

does not dispute are sufficient to show that whoever murdered Moses did it with a firearm

discharged into a residence; those facts are sufficient to prove felonious assault with a firearm

specification, murder, and discharge into a residence. There is also more than sufficient evidence

to identify Dixon as the offender and he does not contest his prior violent felony conviction, which

would ground his convictions for having weapons under disability as well.

The Second District’s decision on Dixon’s Third Assignment of Error is not an objectively

unreasonable application of Jackson and is therefore entitled to deference under the AEDPA.

Dixon’s Third Ground for Relief should therefore be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it

is also recommended that Petitioner be denied a certificate of appealability and that the Court

certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be

permitted to proceed in forma pauperis.

September 15, 2020.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. Such objections shall specify the portions of the Report objected to and shall be

accompanied by a memorandum of law in support of the objections. A party may respond to

another party’s objections within fourteen days after being served with a copy thereof. Failure to

make objections in accordance with this procedure may forfeit rights on appeal.