# Brand v. Warden Correctional Reception Center

> District Court, S.D. Ohio · March 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10664811

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 20, 2020
- **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/10664811

## How later opinions describe it (automated extraction)

- finding that petitioner’s challenge to the reliability of the eyewitnesses’ identifications went to credibility, not sufficiency of the evidence, and “credibility is for the jury to decide”
- recognizing Ohio’s long-standing contemporaneous objection rule

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BARON BRAND, Case No. 1:18-cv-697
Petitioner,
Bertelsman, J.
VS. Litkovitz, M.J.
WARDEN, CORRECTIONAL REPORT AND
RECEPTION CENTER, RECOMMENDATION
Respondent.
Petitioner, an inmate in state custody, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his Hamilton County, Ohio, convictions, (Doc.
1). This matter is before the Court on the petition (Doc. 1) and respondent’s return of writ (Doc.
7), to which petitioner has replied (Doc. 10).
For the reasons stated below, the petition should be denied.
I. PROCEDURAL HISTORY
State Trial Proceedings and Direct Appeal
On May 19, 2014, a Hamilton County, Ohio, grand jury returned a sixteen-count
indictment charging petitioner with two counts of aggravated murder (Counts One and Three),
two counts of murder (Counts Two and Four), two counts of felonious assault (Counts Five and
Six), three counts of aggravated robbery (Counts Seven, Eight, Nine), five counts of having a
weapon while under a disability (Counts Ten, Eleven, Twelve, Fifteen, and Sixteen), one count
of trafficking in heroin (Count Thirteen), and one count of possession of heroin (Count
Fourteen). With the exception of the five counts of having a weapon while under a disability and

‘According to the Ohio Department of Rehabilitation and Correction’s website, petitioner is currently
incarcerated at the Pickaway Correctional Institution. The Clerk of Court is DIRECTED to send a copy of this
Report and Recommendation to petitioner at the address he provided to the Court and also to his name and inmate
number (A719783) at the Pickaway Correctional Institution. However, petitioner is advised that it is his responsibility
to update the Court on any changes to his address.

the two drug charges, all counts carried accompanying weapon specifications and a repeat-
violent-offender specification. (Doc. 6, Ex. 1).
Prior to trial, petitioner pleaded guilty to trafficking in heroin, possession of heroin, and
two counts of having a weapon under disability. (Doc. 6, Ex. 8). The remaining counts,
however, were tried to a jury. The Ohio Court of Appeals, First Appellate District, provided the
following summary of the facts that led to petitioner’s convictions:?
On the evening of May 2, 2014, Courtney McKinney had been at her apartment
with [her cousin, Keelin] Broach[,] and [Beyoncia] Willis. Broach was a known
drug dealer and had brought drugs to McKinney’s apartment. McKinney left
Broach and Willis at her apartment while she went out with a friend to several bars.
Upon returning home in the early hours of May 3, McKinney entered the interior
lobby of her apartment building. As she began to walk up the stairs to her second-
floor unit, she noticed someone, whom she later identified as Devin Isome, at the
top of the stairs. Isome pulled out a gun and stated “Where the money at?” She
told him that she only had $50 and a credit card, to which Isome responded, “Bitch,
I don't want no $50 or no credit card.” He then indicated towards her apartment
and asked, “Who in here?” Isome was wearing a black hoodie and jeans. The
hoodie was tied under his chin, but McKinney had no problem seeing his face.
McKinney attempted to run back outside, but a second person, later identified by
McKinney as Brand, approached her from the basement as she was on the second
step. Brand had on a white hoodie, also tied under his chin. He stated, “Nah, we
going up in here,” and he put a gun to her back as he walked her up the stairs. Isome
put his gun to her head as she unlocked her apartment door. The lights were on in
McKinney’s apartment, and Broach and Willis were lying on a couch. Brand and
Isome ordered McKinney onto a couch and Broach onto the ground, and they
repeatedly demanded money. Broach told them that he did not have money, but
that they could have his dope that was on the table. Brand took items off the table
and tied Broach’s hands behind his back with the jogging pants that Broach had
been wearing. Brand then placed a phone call over speakerphone and told the

?28 U.S.C. § 2254(e)(1) provides that “[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed correct” unless petitioner rebuts the presumption by “clear and convincing evidence.”
Because petitioner has not presented clear and convincing evidence to rebut the Ohio Court of Appeals’ factual
findings quoted herein, the state appellate court’s factual findings are presumed to be correct. See McAdoo v. Elo,
365 F.3d 487, 493-94 (6th Cir. 2004).

person whom he had called, “It aint [sic] no money.” McKinney heard the other
person respond, “Kill them,” and she immediately ran into her bedroom and jumped
out the window. She heard a gunshot as she was jumping, and she realized that she
had been shot in the arm once she hit the ground. McKinney heard two more
gunshots as she ran to the nearest house with lights on.
A resident of the house to which McKinney had fled called the police, and
McKinney was taken to a hospital. Cincinnati Police Officer Thomas Stanton had
been one of the responding officers, and he had followed a blood trail leading to
the side of McKinney’s apartment building. He saw that the blood trail had
originated from a broken second-story window. Officer Stanton secured the
apartment building. The front door to McKinney’s apartment was slightly ajar, but
Officer Stanton had to force it open because a body had been obstructing it. Upon
entering, Officer Stanton immediately saw two deceased victims. Both Broach and
Willis had been shot in the head and had died from the resulting injuries.
Criminalist Kathy Newsome processed the crime scene in McKinney’s apartment.
She found drug paraphernalia, specifically a baggie of marijuana, a scale, and a box
of plastic bags. She also found several pieces of copper jacketing and shell casings.
Criminalist Newsome identified the ammunition as Dynamic Research
Technologies (“DRT”), a brand she had never before encountered. Kevin Lattyak,
a firearms supervisor with the Hamilton County Coroner’s Officer [sic], examined
the casings that had been collected. In Lattyak’s opinion, the casings had been fired
from a semi-automatic handgun, specifically a Bersa.
Detectives Jake Wloszek and Colin Vaughn interviewed McKinney at the hospital
around 6:30 a.m. on May 3, 2014. Although McKinney’s medical records indicated
that she had been intoxicated, McKinney stated that she had only consumed two
alcoholic beverages and had not been drunk. Detective Vaughn noticed that
McKinney was very upset, but did not seem intoxicated. McKinney told the
detectives that the first suspect that she had encountered was a male black,
approximately 5°8”, and 21—22 years of age. She described the second suspect as
a light-skinned black male, shorter than the first suspect, and as having been 20-28
years old.
Detective Vaughn again interviewed McKinney on May 9, 2014. In this interview,
McKinney described the first suspect as a male black that was 5°6” or taller, She
described the second suspect as again being shorter than the first, approximately
5°3”, stocky with a yellow complexion, and around 22-23 years old. Testimony
revealed that Isome was actually 6’4” and was several inches taller than Brand.
Detective Vaughn had developed Brand as a suspect following Brand’s arrest on
unrelated charges, and he prepared a photographic lineup containing a picture of

Brand for McKinney to examine. Vaughn was aware of the discrepancies between
Brand’s height and the heights contained in McKinney’s various descriptions when
he made the lineup, but he believed that McKinney’s ability to accurately judge
height had been affected because she had been looking down on Brand from the
stairwell when she first saw him. Detective Terry McGuffey served as blind
administrator and showed McKinney the photographic lineup. Upon seeing
photograph number three, McKinney began to cry and stated, “That’s him. That’s
that motherfucker right there. I’m a thousand percent that that’s him.” Brand was
the subject of photograph number three. Upon seeing photograph number six,
McKinney responded that the picture “looks similar to the tall one. I’m iffy about
him.” Detective Vaughn did not construe McKinney’s statements to be an
identification of the person in photograph number six as one of the suspects, so he
conducted no follow-up investigation of that person.
McKinney developed Isome as a suspect through her own investigation, and she
showed Detective Vaughn a picture of Isome obtained from Facebook. On May
12, 2014, Detective Vaughn had a blind administrator show McKinney two
additional photographic lineups. McKinney identified no persons in the first
lineup. But in the second lineup that she was shown, McKinney identified Isome
as the first suspect that she had encountered.
Christopher Hill testified at trial that he had been incarcerated on various charges
at the same time that Brand had been incarcerated for the offenses in this case. Hill
and Brand had a conversation in jail about their respective cases. Brand told Hill
that a woman named Courtney had arranged with him to set up Broach for a
robbery. According to Brand, he had followed Courtney home from a club with
the intention of taking Broach’s money and heroin. Brand further told Hill that
mayhem had ensued, and that he had shot at Courtney, who had fled by jumping
out a window. Before he left with a couple ounces of heroin and a couple thousand
dollars, Brand shot Broach and another woman to eliminate any witnesses.
Evidence was further presented to the jury that Brand had been arrested on
unrelated offenses on May 8, 2014. As part of that arrest, a search warrant was
executed at Brand’s residence at 5460 Beechmont Avenue. When executing the
warrant, officers discovered a large amount of heroin, approximately $1,900, a .380
Bersa handgun, and a box of DRT .380 cartridges. Detective Vaughn testified that
he had never seen a DRT head stamp on a cartridge case prior to this case, and that
Brand had admitted that the DRT ammunition, the weapon, and the heroin found at
the Beechmont residence belonged to him.
Over Brand’s objection, the state presented testimony from Laurie Bellow, a retired
detective from the Forest Park police department. Bellow testified that in 2010, she
had been dispatched to the scene of a robbery. In that case, money, a cell phone,

and marijuana had been stolen from an individual known to sell drugs, and the
victim had been shot during the robbery. Bellow explained that she had developed
Brand as a suspect in that case, and that he had ultimately been convicted of the
resulting charges.
Brand presented testimony from Melissa Berry, an expert in the psychology
associated with eyewitness identification. Although Berry could not state with
certainly that McKinney’s eyewitness identification had been inaccurate, she
explained that there were many factors present in this case that could have had an
impact on the identification. She testified that McKinney’s attention was divided
between two suspects; that both suspects had their faces somewhat obscured by a
hood; that witnesses often focus on the presence of a weapon rather than focus on
other features of a suspect; and that severe stress can impair a person’s memory,
causing the person to imbed information learned post-event into their memory of
the actual event. She further explained that both intoxication and exposure time
can affect an identification.
The jury returned verdicts finding Brand guilty of all offenses and specifications,
and the trial court separately found Brand to be a repeat-violent offender. Various
offenses merged for purposes of sentencing, and the trial court issued an entry
convicting Brand of, and imposing sentence on, the following offenses: two counts
of aggravated murder, felonious assault with accompanying weapon and repeat-
violent-offender specifications, aggravated robbery, and two counts of having a
weapon while under a disability.
State v. Brand, No. C-150590, 2016 WL 6269368, at *1-4 (Ohio App. Oct. 26, 2016). The trial
court sentenced petitioner to a total effective sentence of life without parole. The jury was
unable to reach a verdict with respect to petitioner’s co-defendant, Devin Isome. (See Doc. 6-23,
at PageID 2223).
Petitioner, through new appellate counsel, raised the following five assignments of error
on direct appeal:
1. The trial court erred to the prejudice of the appellant in that it convicted him
based on insufficient evidence and that it convicted him against the manifest
weight of the evidence.
2. Appellant was deprived of his right to a fair trial when the trial court admitted
evidence of other acts in violation of the Fourteenth Amendment.

3. The trial court erred to the prejudice of the appellant in permitting a read back
of portions of testimony of the state’s witness depriving appellant of a fair trial
and due process of law in violation of the Fourteenth Amendment to the United
States Constitution.
4. The state engaged in prosecutorial misconduct which deprived appellant of a
fair trial and due process of law as guaranteed by the Fourteenth Amendment
to the U.S. Constitution.
5. Appellant was deprived of his right to effective assistance of counsel in
violation of his Sixth and Fourteenth and related Ohio constitutional ri ghts.
6. The trial court erred to the prejudice of appellant in failing to grant the motion
to suppress the eyewitness identification in violation of the Fifth and Fourteenth
Amendments to the United States Constitution.
(Doc. 6, Ex. 17). On October 26, 2016, the Ohio Court of Appeals affirmed petitioner’s
convictions. Brand, 2016 WL 6269368, at *8. On December 12, 2016, petitioner, through
counsel, appealed to the Ohio Supreme Court, raising the following six assignments of error:
1. Where a defendant is convicted based upon insufficient evidence or where a
conviction is against the manifest weight of the evidence, the conviction is a
violation of the due process clause of the Constitution.
2. Where the trial court admits evidence of other acts where there is no
demonstration of a unique or identifiable plan, it is a violation of the defendant’s
right to a fair trial and due process of law.
3. Where the trial court allows the jury to re-hear testimony of only portions of
one of the state’s witnesses during jury deliberations the Appellant is deprived
of a fair trial and due process of law.
4. Where the prosecutor engages in repeated acts of misconduct which affect the
fairness of the trial, the conviction must be set aside and a new trial ordered.
5. The failure to present and raise meritorious legal arguments constitutes
ineffective assistance of counsel.

6. Where the eyewitness is shown a lineup and the lineup photographs do not match
the description of the perpetrator, the lineup is unduly suggestive and likely to
lead to misidentification.
(Doc. 6, Ex. 20, at PageID 194-203). The Ohio Supreme Court denied further review. State v.
Brand, 77 N.E.3d 988 (Ohio 2017) (table).
Federal Habeas Corpus
In the instant habeas petition, plaintiff raises five grounds for relief:
GROUND ONE: Petitioner’s convictions are based on insufficient evidence.
GROUND TWO: Petitioner’s right to due process of law was violated when the
trial court admitted other acts evidence.
GROUND THREE: Petitioner’s right to a fair trial as guaranteed by the due
process clause of the 14th Amendment was violated due to prosecutorial
misconduct.
GROUND FOUR: Petitioner was denied effective assistance of counsel.
GROUND FIVE: Petitioner’s due process rights were violated when the trial court
denied petitioner’s motion to suppress eyewitness identification in violation of the
Sth and 14th Amendments to the United States Constitution.
(Doc. 1, at PageID 5-10, 16).
Respondent has filed a return of writ in opposition to the petition. (Doc. 7). According
to respondent, petitioner’s grounds for relief are procedurally defaulted or without merit.
Petitioner has filed a traverse. (Doc. 10).
IJ. THE PETITION SHOULD BE DENIED.
In this federal habeas case, the applicable standard of review governing the adjudication
of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d).
Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated

on the merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Ofte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams □□□
Taylor, 529 U.S. 362, 412-13 (2000)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’” Jd. at 599-600 (quoting Williams, 529 U.S. at
413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Jd. at 600.
As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster, _ U.S. _, 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record
before the state court where a claim has been adjudicated on the merits by the state
court). It is not enough for us to determine that the state court’s determination is
incorrect, to grant the writ under this clause, we must hold that the state court’s
determination is unreasonable. ... This is a “substantially higher threshold.”. . .
To warrant AEDPA deference, a state court’s “decision on the merits” does not

have to give any explanation for its results, Harrington v. Richter, _ U.S. _, 131
S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the relevant
Supreme Court cases, as long as “neither the reasoning nor the result of the state-
court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362,
154 L.Ed.2d 263 (2002) (per curiam).
(emphasis in original). The Supreme Court extended its ruling in Harrington to hold that
when a state court rules against a defendant in an opinion that “addresses some issues but does
not expressly address the federal claim in question,” the federal habeas court must presume,
subject to rebuttal, that the federal claim was “adjudicated on the merits” and thus subject to the
“restrictive standard of review” set out in § 2254(d). See Johnson v. Williams, 568 U.S. 289, 292
(2013).
Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington vy,
Richter, 562 U.S. 86, 102 (2011). In other words, to obtain federal habeas relief under that
provision, the state prisoner must show that the state court ruling on the claim presented “was so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” /d. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher, 565 U.S. 34, 38-40 (2011); cf Otte, 654 F.3d at
600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim

addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). In Greene, 565 U.S. at 38, the
Court explained:
[W]e held last term in Cullen v. Pinholster, 563 U.S. _, 131 S.Ct. 1388, 179 L.Ed.2d
557 (2011), that review under § 2254(d)(1) is limited to the record that was before
the state court that adjudicated the prisoner’s claim on the merits. We said that the
provision’s “backward-looking language requires an examination of the state-court
decision at the time it was made.” /d., at _, 131 S.Ct. at 1398. The reasoning of
Cullen determines the result here. As we explained, § 2254(d)(1) requires federal
courts to “focu[s] on what a state court knew and did,” and to measure state-court
decisions as of ‘the time the state court renders its decision.”” Id., at _, 131 S.Ct.
at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .; emphasis added).
Decisions by lower courts are relevant “to the extent [they] already reviewed and
interpreted the relevant Supreme Court case law to determine whether a legal principle or right
had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of
clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed
to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.”
McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
A. Ground One Should Be Denied.
In Ground One, petitioner asserts that insufficient evidence supports his convictions.
Although petitioner does not expressly state which of his convictions he is challenging, the Court
understands Ground One to mirror petitioner’s argument on direct appeal, challenging the
sufficiency of the evidence that was presented at trial to establish his guilt beyond a reasonable
doubt on the charges for aggravated murder, aggravated robbery, felonious assault, and having a
weapon while under a disability. (See Doc. 1, at PagelD 6 (checking box indicating that
10

petitioner raised this issue in his direct appeal)). On direct appeal, petitioner advanced two
arguments: (1) there was insufficient evidence to prove that he was involved in the crimes, and
(2) there was insufficient evidence to prove that a robbery occurred. (Doc. 6, Ex. 17, at PageID
119).
The Ohio Court of Appeals was the only state court to issue a reasoned decision
addressing petitioner’s constitutional sufficiency-of-the-evidence claim on direct appeal. The
court considered the claim in conjunction with a state-law claim challenging the weight of the
evidence. The court rejected both assignments of error, reasoning in pertinent part as follows:
Brand was convicted of two counts of aggravated murder, aggravated robbery,
felonious assault, and having a weapon while under a disability. He advances two
specific arguments in support of this assignment of error. First, he challenges
McKinney’s identification and contends that there was insufficient evidence to
prove that he was involved in these crimes.
Extensive evidence was presented regarding McKinney’s identification of Brand.
Although Brand had a hood tied around his face during the commission of these
offenses, McKinney testified that his face had not been obscured and that she had
been able to clearly view his facial features. Evidence further demonstrated that
McKinney had time to see Brand both in the lobby and stairwell of her apartment
building, and in her apartment, and that both areas were well lit. Further, while
evidence was presented regarding the discrepancies in McKinney’s description of
Brand, particularly with respect to his height, the jury was also presented with
testimony that McKinney’s observations could have been affected by the fact that
she had first encountered Brand while she stood a few steps above him.
Defense counsel vigorously cross-examined McKinney and highlighted the
discrepancies in her identification, but the state presented additional evidence at
trial supporting her identification of Brand as the perpetrator of these offenses, The
jury heard evidence that DRT was not a common brand of ammunition, but that it
had been used in the commission of these offenses, that it had been found in Brand’s
apartment, and that Brand had admitted ownership of the ammunition found in his
apartment. The jury was additionally presented with testimony from Christopher
Hill that Brand had admitted his role in these offenses, as well as described in
significant detail to Hill what had occurred. The jury was in the best position to

11

view the credibility of these witnesses, and we will not second guess its
determination that McKinney’s identification of Brand was credible.
Brand further argues that the record contains no evidence that anything had been
taken from McKinney’s apartment when Broach and Willis were killed. The record
belies this contention. McKinney testified that she saw Brand grab items off of a
table in her apartment. And Christopher Hill testified that Brand had told him that
he had taken both heroin and money from McKinney’s apartment.
We find that Brand’s convictions were supported by both the sufficiency and the
weight of the evidence. The first assignment of error is overruled.
Brand, 2016 WL 6269368, at *4-5.
The well-settled standard of review for evaluating the merits of constitutional claims
challenging the sufficiency of the evidence was established by the Supreme Court in Jackson v.
Virginia, 443 U.S. 307, 319 (1979). As the Supreme Court held in Jackson, because the Due
Process Clause requires the State to prove beyond a reasonable doubt every fact necessary to
constitute the charged offense, Jn Re Winship, 397 U.S. 358, 363-64 (1970), “the relevant
question” in assessing the sufficiency of the evidence “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.” Jackson, 443 U.S. at 319 (emphasis
in original),
Under the Jackson standard, the State is not required to rule out every hypothesis except
that of guilt beyond a reasonable doubt. Jd. at 326. Rather, “a federal habeas corpus court faced
with a record of historical facts that supports conflicting inferences must presume—even if it does
not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.” Id.; see also Walker v. Engle, 703 F.2d 959,
969-70 (6th Cir. 1983). It is the responsibility of the trier of fact to resolve conflicts in
iz

testimony, to weigh the evidence and to draw reasonable inferences from the evidence. Jackson,
443 US. at 319. Consequently, the reviewing court is not permitted to reweigh the evidence,
reevaluate the credibility of witnesses, make its own subjective determination of guilt or
innocence, or otherwise substitute its opinion for that of the jury. See id. at 318-19 & n.1 3; see
also United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 201 1) (citing Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009)); York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988) (per curiam).
“Circumstantial evidence alone is sufficient to support a conviction.” Newman vy.
Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (quoting Johnson v. Coyle, 200 F.3d 987, 992 (6th
Cir. 2000)); see also Fisher, 648 F.3d at 450. Due process is satisfied as long as such evidence is
enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a
reasonable speculation that the petitioner is guilty of the charged crime. Newman, 543 F.3d at
796-97 (and Sixth Circuit cases cited therein).
Moreover, federal habeas review of a claim challenging the sufficiency of the evidence is
even further limited. As the Sixth Circuit explained in Brown, 567 F.3d at 205, the federal
habeas court is “bound by two layers of deference to groups who might view facts differently
than [the habeas court] would.” The federal habeas court must defer not only to the trier of fact’s
findings as required by Jackson, but under 28 U.S.C. § 2254(d), must also “defer to the state
appellate court's sufficiency determination as long as it is not unreasonable.” Jd. (emphasis in
original); see also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011); Anderson v. Trombley, 451
F. App’x 469, 474-75 (6th Cir. 2011). Therefore, as the Sixth Circuit went on to emphasize in
Brown:
[W]e cannot rely simply upon our own personal conceptions of what evidentiary
13

showings would be sufficient to convince us of the petitioner’s guilt. We cannot
even inquire whether any rational trier of fact would conclude that petitioner .. . is
guilty of the offenses for which he was charged. Instead, we must determine
whether the Ohio Court of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find [the petitioner] guilty beyond a reasonable doubt
based on the evidence introduced at trial,
Brown, 567 F.3d at 205 (emphasis in original).
Applying the double-layer deferential standard to the case-at-hand, the undersigned is
convinced that the Ohio Court of Appeals’ sufficiency determination is neither contrary to nor an
unreasonable application of Jackson.* As to petitioner’s contention that there was insufficient
evidence connecting him to the crimes, McKinney, one of the victims, identified petitioner with
a high degree of certainty as a perpetrator of the crimes from a photo array within days of the
crimes (Doc. 6-17 (transcript), at PageID 1720, 1726) and again at trial (Doc. 6-17 (transcript), at
PageID 1737). The State also presented evidence that petitioner confessed his involvement in
the crimes to another inmate, Christopher Hill (Doc. 6-18 (transcript), at PageID 1910-22), and
that the unusual brand of shell casings found at the crime scene matched ammunition found in
petitioner’s apartment (Doc. 6-16 (transcript), at PageID 1418-29, 1613-18; Doc. 6-18, at PageID
1989-93, 2040). Although petitioner questions the reliability of these witnesses and of the shell-
casing evidence (see, e.g., Doc. 6, Ex. 17, at PagelD 119), it is “the responsibility of the trier of
fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

‘Although the Ohio Court of Appeals did not cite Supreme Court precedents in addressing petitioner’s
sufficiency-of-evidence claims, the court utilized the proper standard of review established by the Supreme Court in
Jackson in assessing whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier
of fact could have found beyond a reasonable doubt that petitioner was guilty of the charges. See Brand, 2016 WL
6269368, at *4.

14

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. See also United States
v. Paige, 470 F.3d 603, 608 (6th Cir. 2006) (“Attacks on witness credibility are simply
challenges to the quality of the government’s evidence and not the sufficiency of the evidence.”)
(quoting United States v, Sanchez, 928 F.2d 1450, 1457 (6th Cir. 1991)). See also Gibbs y.
Kemna, 192 F.3d 1173, 1176 (8th Cir. 1999) (finding that petitioner’s challenge to the reliability
of the eyewitnesses’ identifications went to credibility, not sufficiency of the evidence, and
“credibility is for the jury to decide”). The decision of the Ohio Court of Appeals finding there
was sufficient evidence identifying petitioner as a perpetrator of the crimes was not an
unreasonable application of the Jackson standard. See, e.g., Hunter v. Burt, No. 19-1460, 2019
WL 5571472, at *1 (6th Cir. Sept. 5, 2019) (finding that jurists of reason would not debate
district court’s determination that state appellate court reasonably determined that there was
sufficient identification evidence where the prosecution presented testimony from witnesses who
identified the petitioner as a perpetrator).
As to petitioner’s additional contention that there was no evidence that a robbery
occurred because there was no evidence that anything was missing from the apartment or any of
its occupants (Doc. 6, Ex. 17, at PageID 119), the Ohio Court of Appeals reasonably rejected this
claim.
McKinney testified that when she returned home on the night of the incident, petitioner
and another perpetrator forced McKinney into her apartment at gun point. (Doc. 6-17
(transcript), at PageID 1680-82; 1685-89, 1691-92). McKinney’s cousin, Broach, and friend,
Willis, were inside the apartment on a couch. (Doc. 6-17 (transcript), at PageID 1694).
McKinney testified that petitioner and the other perpetrator told Broach to get on the ground and
15

McKinney to sit on the other couch. (Doc. 6-17 (transcript), at PageID 1696-97). McKinney
further testified that the perpetrators repeatedly demanded money and that petitioner took items
from a table in the apartment. (Doc. 6-17 (transcript), at PageID 1698-1701). Further, Hill
testified that petitioner admitted taking heroin and money from McKinney’s apartment. (Doc. 6-
18 (transcript), at PageID 1922). Based on this testimony, the state appellate court reasonably
concluded that the state presented sufficient evidence of a robbery. See Jackson, 443 U.S. at
319.4
Ground One does not warrant habeas corpus relief.
B. Ground Two Should Be Denied.
In Ground Two, petitioner asserts that his right to due process was violated when
the trial court admitted other-acts evidence. As with Ground One, the Court understands
Ground Two to mirror the other-acts issue raised on direct appeal. (See Doc. 1, at PageID
7 (checking box indicating that petitioner raised this issue in his direct appeal)). The Ohio
Court of Appeals decided the other-acts issue as follows:
Brand argues that he was deprived of his right to a fair trial when the trial court
erred by admitting other-acts evidence from retired detective Laurie Bellow, who
testified that Brand had previously been involved in the robbery and shooting of a
known drug dealer in 2010. We review the trial court’s admission of evidence for
an abuse of discretion. See State v. Noling, 98 Ohio St.3d 44, 2002—Ohio—7044,
781 N.E.2d 88, 4 43.

‘Petitioner argues that the length of time the jury deliberated in his case supports his insufficiency of the
evidence claim. (See Doc. 10, at PageID 2534). However, he does not site any Supreme Court authority in support
of this proposition, and other courts have rejected such claims. See, e.g., Hainey v. Phelps, Civ. No. 08-272-SLR,
2011 WL 2708621, at *7 (D. Del. July 12, 201 1) (“Although petitioner contends that the jury’s lengthy deliberations
and temporary deadlock supports his challenge to the sufficiency of the evidence, there is no Supreme Court precedent
indicating that the length of a jury’s deliberations is a factor affecting a sufficiency challenge.”); see also Marx vy.
Hartford Accident & Indem. Co., 321 F.2d 70, 71 (Sth Cir.1963) (“We cannot hold an hourglass over a jury. If the
evidence is sufficient to support the verdict, the length of time the jury deliberates is immaterial.”).
16

Generally, under Evid. R. 404(A), evidence of a person’s character is not
admissible to prove action in conformity therewith. However, under Evid. R
404(B), evidence of other crimes may be admissible to show “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” Here, the state had sought to admit evidence of Brand’s prior crime
to establish his identity as the perpetrator of the instant offense.
Other-acts evidence may be used to prove identity when the evidence establishes a
defendant’s modus operandi, or behavioral fingerprint. State v. Lowe, 69 Ohio
St.3d 527, 531, 634 N.E.2d 616 (1994). When used for this purpose, the other-acts
evidence proves the defendant’s identity by demonstrating that the defendant “has
committed similar crimes and that a distinct, identifiable scheme, plan, or system
was used in the commission of the charged offense.” /d,, quoting State v. Smith,
49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990). The other acts need not be
identical to the crime in question, but they must “be related to and share common
features.” Id.
The other-acts evidence introduced in this case established that Brand had been
convicted of charges related to his role in the shooting and robbery of a known drug
dealer in 2010. Other than the fact that both Brand’s prior crime and the instant
offense involved the robbery of a known drug dealer, the offenses shared little in
common. While the victim of the prior offense was shot, the victims in the instant
case were executed to prevent them from becoming witnesses to the crime. The
robbery of a drug dealer is not an uncommon crime. Brand’s involvement in two
such crimes, with the absence of any other common features linking the offenses,
did not establish a unique scheme or plan identifiable only to him. We hold that
the trial court abused its discretion in admitting the other-acts evidence.
However, in light of the other evidence of Brand’s guilt, as described in our
resolution of the first assignment of error, the admission of this evidence did not
result in prejudicial error or affect the outcome of the case. See State v. Bryan, 101
Ohio St.3d 272, 2004—-Ohio—971, 804 N.E.2d 433, 127. Brand was not deprived
of his right to a fair trial. The second assignment of error is overruled.
Brand, 2016 WL 6269368, at *5-6.
“[H]abeas review does not ordinarily extend to state court rulings on the admissibility of
evidence.” Buell v. Mitchell, 274 F.3d 337, 357 (6th Cir. 2001) (citing Burgett v. Texas, 389
U.S. 109, 113-14, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967)). Furthermore, “errors of state law,
especially errors based on a trial court’s evidentiary rulings, do not, in and of themselves, violate
17

the constitution.” 274 F.3d at 357 (citing Neumann v. Jordan, 84 F.3d 985, 988 (7th Cir.1996)).
“When an evidentiary ruling is so egregious that it results in a denial of fundamental fairness, it
may violate due process and thus warrant habeas relief.” Jd “Generally, state-court evidentiary
rulings cannot rise to the level of due process violations unless they ‘offend [ ] some principle of
justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”
Seymour v. Walker, 224 F.3d 542, 552 (quoting Montana v. Egelhoff, 518 U.S. 37, 43, 116 □□□□
2013, 135 L.Ed.2d 361 (1996)).
“A due process claim premised on a mistaken state court evidentiary ruling faces a steep
climb. The kind of foundational unfairness and arbitrariness needed to show that a flawed
evidentiary ruling rises to the level of a due process violation is not a broad category[.]” Burger
v. Woods, 515 F. App’x 507, 510 (6th Cir. 2013). “*[G]arden-variety’ character-evidence error
does not ‘cross the constitutional threshold’ of due process.” Jd. (quoting Watkins v. Meloy, 95
F.3d 4, 7 (7th Cir. 1996)). See also Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003) (“[t]here
is no clearly established Supreme Court precedent which holds that a state violates due process
by permitting propensity evidence in the form of other bad acts evidence.”) Petitioner has not
demonstrated that the mistaken admission of other-acts evidence violates the Due Process
Clause. See Burger, 515 F. App’x at 510 (“[T]he Supreme Court to our knowledge . . . has never
identified an improper-character-evidence case that falls into [the category of due process
violations].”). Even assuming arguendo that petitioner could make such a showing, petitioner
has not shown that other-acts evidence was “material in the sense of a crucial, critical highly
significant factor.” Burger, 515 F. App’x at 510 (quoting Brown v. O’Dea, 227 F.3d 642, 645
(6th Cir. 2000)). Rather, the other evidence of petitioner’s guilt set forth above in the Court’s
18

discussion of Ground One, including McKinney’s identification testimony, Hill’s testimony that
petitioner confessed to his involvement in the crimes, and the evidence that the unusual brand of
shell casings found at the crime scene matched ammunition found in petitioner’s apartment, was
strong.
Ground Two does not warrant habeas corpus relief.
C. Ground Three Should Be Denied.
In Ground Three, petitioner asserts that he was denied a fair trial due to prosecutorial
misconduct. As with the previous two grounds, the Court understands petitioner to be raising the
same prosecutorial-misconduct claim that he raised on direct appeal. (See Doc. 1, at PagelID 9
(checking box indicating that petitioner raised this issue in his direct appeal)). There, petitioner
asserted that the prosecutor engaged in misconduct by: (1) making improper comments during
closing argument; (2) eliciting improper hearsay from McKinney on direct examination; and (3)
eliciting improper opinion evidence from a police officer. (Doc. 6, Ex. 17, at PageID 125-28).
Respondent contends that Ground Three is either procedurally defaulted or fails on the merits.
For the reasons below, the Court finds that Ground Three’s first sub-claim is procedurally
defaulted and that the remaining two sub-claims fail on the merits.
In addressing petitioner’s prosecutorial misconduct claim, the Ohio Court of Appeals
found:
Brand argues that he was deprived of a fair trial due to misconduct committed by
the prosecutor.
Brand first argues that the prosecutor made multiple improper comments during
closing arguments. To have deprived a defendant of a fair trial, a prosecutor’s
remarks must have been improper and have prejudicially affected the defendant’s
substantial rights. State v. Smith, 130 Ohio App.3d 360, 366, 720 N.E.2d 149 (1st
19

Dist.1998). The prosecutor is generally entitled to a wide degree of latitude during
closing argument. State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). The
prosecutor’s statements must not be viewed in isolation, but in light of the entire
closing argument. State v. Kelly, 1st Dist. Hamilton No. C—010639, 2002—Ohio-—
6246, ¥ 22.
We have reviewed each remark made by the prosecutor during closing argument
that Brand has cited. Brand failed to object to any of these comments, and
consequently has forfeited all but plain error. Jd. We find that a majority of the
remarks cited by Brand were not improper. And to the extent that any remark could
be considered improper, it certainly did not amount to plain error affecting the
outcome of the proceedings.
Brand next argues that the prosecutor elicited improper hearsay testimony from
McKinney when she testified that she had heard someone on speakerphone tell
Brand to “kill them.” But because this testimony was used not to prove the truth of
the matter asserted, but to explain why McKinney jumped out of a window, it was
not improper. The prosecutor also mentioned this telephone call and instruction to
“kill them” during closing argument, arguing that Brand had intended to kill Broach
and Willis because he had been instructed to do so. But Brand failed to object to
this comment, and it did not amount to plain error.
Brand further contends that the prosecutor improperly elicited opinion testimony
from Detective Vaughn in violation of Evid. R. 703. He argues that the prosecutor
used Detective Vaughn as an expert witness on drug trafficking. We find the
prosecutor’s questioning of Detective Vaughn regarding drug terminology and
value to be entirely proper. The detective was testifying based on his knowledge
and experience as a police officer, and not as an expert witness. We further find no
error in the additional testimony from Detective Vaughn cited by Brand. The
testimony was based on Vaughn’s investigation, observations, and knowledge and
experience as an officer.
We hold that Brand was not deprived of a fair trial due to prosecutorial misconduct,
and we overrule the fourth assignment of error.
Brand, 2016 WL 6269368, at *6-7.
Petitioner does not dispute the state appellate court’s finding that counsel failed to object
during closing argument to the challenged comments. (See Doc. 10, at PageID 2537, arguing
that counsel’s failure to object constituted ineffective assistance of counsel). In recognition of

20

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 defendant
with federal constitutional claims must fairly present those claims to the state courts for
consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1),
(c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S.
270, 275-76 (1971). If the petitioner fails to fairly present his constitutional claims through the
requisite levels of state appellate review to the state’s highest court, or commits some other
procedural default that prevents a merit-based review of the federal claims by the state’s highest
court, he may have waived the claims for purposes of federal habeas review. See O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 847-48 (1999); Harris v. Reed, 489 US. 255, 260-62 (1989);
McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097,
1099 (6th Cir. 1989).
It is well-settled under the procedural default doctrine that the federal habeas court may
be barred from considering an issue of federal law from a judgment of a state court if the
judgment rests on a state-law ground that is both “independent” of the merits of the federal claim
and an “adequate” basis for the state court’s decision. See Harris, 489 U.S. at 260-62. The
Supreme Court has stated:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default, and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.

21

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner
fails to comply with a state procedural rule that required her to have done something to preserve
the issue for appellate review. United States v. F. rady, 456 U.S. 152, 167-69 (1982); Simpson v.
Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit employs a three-prong test, which was initially established in Maupin vy.
Smith, 785 F.2d 135, 138 (6th Cir. 1986), to determine if a claim is procedurally defaulted under
the adequate and independent state ground doctrine:
First, the court must determine that there is a state procedural rule that is applicable
to the petitioner’s claim and that the petitioner failed to comply with the rule. ...
Second, the court must decide whether the state courts actually enforced the state
procedural sanction. ... Third, the court must decide whether the state procedural
forfeiture is an “adequate and independent” state ground on which the state can rely
to foreclose review of a federal constitutional claim.
Hofjner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Jacobs v. Mohr, 265 F.3d 407,
417 (6th Cir. 2001) (in turn quoting Maupin)); see also Johnson v. Bradshaw, 493 F. App’x 666,
669 (6th Cir. 2012). Under Maupin and as discussed above, if the three prerequisites are met for
finding a claim is procedurally defaulted under the adequate and independent state ground
doctrine, federal habeas corpus review of the defaulted claim is precluded unless the petitioner
can demonstrate cause for and prejudice from his procedural default or that failure to consider
the defaulted claim will result in a “fundamental miscarriage of justice.” Hoffner, 622 F.3d at
495 (citing Maupin, 785 F.2d at 138); Johnson, 493 F. App’x at 669. See also Coleman, 501
U.S. at 750; Harris, 489 U.S. at 262: Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v.
fsaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

22

In this case, petitioner committed a procedural default when he failed to object to the
remarks in closing arguments cited as examples of misconduct at the time those comments were
made. See Osborne v, Ohio, 495 U.S. 103, 124 (1990) (recognizing Ohio’s long-standing
contemporaneous objection rule). Ohio’s contemporaneous objection rule is a firmly-
established, adequate and independent state procedural rule, which serves to foreclose federal
habeas review when relied on by the state courts as a basis for denying relief. See, e.g., Goodwin
v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011) (citing Hinkle v. Randle, 271 F.3d 239, 244 (6th
Cir. 2001)); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005) (citing Mason v. Mitchell, 320
F.3d 604, 635 (6th Cir. 2003)); see also State v. Murphy, N.E.2d 765, 788 (Ohio 2001)
(pointing out that Ohio’s “waiver rule,” which “requires that a party make a contemporaneous
objection to alleged trial error in order to preserve that error for appellate review,” is “of long
standing” and “goes to the heart of the adversary system of justice”). The Sixth Circuit has
repeatedly held that “plain error” review by the state appellate court “constitutes enforcement of
Ohio’s contemporaneous objection rule.” See, e.g., Williams v. Bagley, 380 F.3d 932, 968-69
(6th Cir. 2004) (and Sixth Circuit cases cited therein); see also Goodwin, 632 F.3d at 315.
The Ohio Court of Appeals clearly enforced the state procedural bar to review when it
pointed out that review of the assignments of error presented in Ground Three’s first sub-claim
was for “plain error.” Under well-settled Sixth Circuit precedent, the state appellate court’s
plain-error review did “not constitute a waiver of state procedural default rules.” See, e.g.,
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (citing Paprocki v. Foltz, 869 F.2d 281,
284-85 (6th Cir. 1989)); see also Goodwin, 632 F.3d at 315. The Ohio Supreme Court’s later
unexplained entry summarily denying petitioner’s application for leave to appeal must be
23

presumed to rely on the same state procedural ground. See T. aqwiim v. Johnson, No. 99-3425,
2000 WL 1234322, at *3 (6th Cir. Aug. 22, 2000) (citing Levine v. Torvik, 986 F.2d 1506, 1517
n.8 (6th Cir. 1993), and Yist v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).
Having procedurally defaulted the first sub-claim in Ground Three, petitioner may now
obtain review of the issue by this Court only by showing either cause and prejudice or a
miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 488-89 (1986).
Petitioner seeks to show cause by arguing that trial counsel was ineffective for failing to
object to the allegedly improper arguments at issue in the first sub-claim. Ineffective assistance
of counsel can provide cause for a procedural default unless the ineffective assistance of counsel
claim was itself procedurally defaulted. See Murray, 477 U.S. at 488-89. See also Edwards v.
Carpenter, 529 U.S. 446, 452 (2000); Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir.
2005).
While petitioner raised the issue of trial counsel’s alleged ineffectiveness before the Ohio
appellate court, that court declined to review the claim because petitioner failed to follow the
court’s appellate procedural rules. The Ohio appellate court held:
In his fifth assignment of error, Brand argues that he received ineffective assistance
from his trial counsel. He contends that his counsel failed to object to numerous
instances of hearsay and prosecutorial misconduct, but he provides no citation to
the record of specific examples of ineffectiveness. Consequently, we disregard this
assignment of error pursuant to App. R. 12(A)(2). See State v. Rucker, 1st Dist.
Hamilton No. C—110082, 2012-Ohio-185, 32.
Brand, 2016 WL 6269368, at *7.
Rule 12(A)(2) of the Ohio Rules of Appellate Procedure provides in relevant part that the
appellate court can disregard an assignment of error if the party raising it fails to identify in the

24

record the error upon which the assignment of error is based. Ohio App. R. 12(A)(2). Petitioner
failed to follow the appellate rule because he failed to cite to the record. Application of this rule
has been determined to be an adequate and independent state ground upon which to foreclose
relief since it “did not require review of any merits and it had a discernable standard of
application.” Banks v, Bradshaw, No. 1:05-cv-1141, 2008 WL 4356955, at *11 (N.D. Ohio
Sept. 17, 2008).
Nor has petitioner established cause to excuse the default of his ineffective-assistance-of-
trial-counsel claim. Petitioner is unable to prevail on any argument that his appellate counsel’s
failure to properly raise this claim on appeal constitutes cause because the claim of
ineffectiveness of appellate counsel was itself defaulted by petitioner, who never raised such a
claim in the state courts. (See Doc. 1, at PagelD 3) (checking the box “No” where asked, “Other
than the direct appeal listed above, have you previously filed any other petitions, applications, or
motions concerning this judgment of conviction in any state court?”). “Under Ohio law, a
criminal defendant must raise his ineffective assistance of appellate counsel claim in an
application for reopening (i.e., a motion for delayed reconsideration) filed ‘in the court of
appeals where the alleged error took place.’” Fautenberry v. Mitchell, 515 F.3d 614, 639 (6th
Cir. 2008) (quoting State v. Murnahan, 584 N.E.2d 1204, 1209 (1992)); see also Williams vy.
Lazaroff, 648 F. App’x 548, 553 (6th Cir. 2016). Ohio Rule of Appellate Procedure 26(B)
permits a criminal defendant to file an application for reopening an appeal within ninety days of
the appellate judgment “unless the applicant shows good cause for filing at a later time.” Ohio
R. App. P. 26(B)(1). Unexhausted ineffective-assistance-of-appellate-counsel claims may be
deemed procedurally defaulted when, as here, a criminal defendant fails to provide cause for
25

failing to file a Rule 26(B) motion for reopening within the prescribed ninety-day period. See
Goldberg v. Maloney, 692 F.3d 534, 538 n.3 (6th Cir. 2012).
Nor has petitioner demonstrated that failure to consider the defaulted sub-claim will
result in a “fundamental miscarriage of justice,” or in other words, that the alleged error
“probably resulted in the conviction of one who is actually innocent.” See Murray, 477 U.S. at
495-96; see also Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual innocence in this context
requires a showing of factual innocence, not mere legal insufficiency. See House v. Bell, 547
U.S. 518, 538 (2006); Carter v. Mitchell, 443 F.3d 917, 538 (6th Cir. 2006) (citing Bousley v.
United States, 523 U.S. 614, 623 (1998)); see also Vanwinkle v. United States, 645 F.3d 365, 369
(6th Cir. 2011). Furthermore, the Supreme Court has stated that “tenable actual-innocence
gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of... new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.’” McQuiggin v. Perkins, 569 U.S. 383,
386 (2013) (quoting Schlup, 513 U.S. 298, 329 (1995)); see also House, 547 U.S. at 538
(pointing out that the Sch/up actual-innocence standard is “demanding and permits review only
in the extraordinary case”) (internal citation and quotation marks omitted), To establish a
credible gateway claim of actual innocence, the petitioner must present “new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324; see also Connolly
v. Howes, 304 F. App’x 412, 417 (6th Cir. 2008). No such showing has been made in this case.5

*Petitioner relies on “recent Google research” which he asserts shows that DRT ammunition “could be
brought [sic] all over Ohio.” (Doc. 10, at PageID 2534, 2541). Petitioner does not identify the source of his
information or the time frame he searched, Nor has he = that, to the extent it addresses the relevant time

As for Ground Three’s non-defaulted, second and third sub-claims, petitioner asserts that
the prosecutor solicited inadmissible hearsay and opinion evidence from, respectively,
McKinney and Detective Vaughn. As set forth above, the Ohio Court of Appeals rejected these
claims on the merits. Brand, 2016 WL 6269368, at *6-7.
On habeas corpus review, the standard to be applied to claims of prosecutorial
misconduct is whether the conduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process,” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);
Darden v. Wainwright, 477 U.S. 168, 181 (1986); Bates v. Bell, 402 F.3d 635, 640-41 (6th Cir.
2005); Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999), or whether it was “so egregious as to
render the entire trial fundamentally unfair.” Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.
1979). To prevail on a claim of prosecutorial misconduct, the petitioner must show that the
alleged misconduct was “both improper and flagrant.” See Smith v, Mitchell, 567 F.3d 246, 255
(6th Cir. 2009) (and Sixth Circuit cases cited therein).
The Ohio Court of Appeals found there was no evidentiary error in admitting the
challenged testimony from McKinney and Vaughn. This Court is bound by the state court’s
application of Ohio evidentiary laws. See, e.g., Battiste v. Miller, No. 1:17-CV-128, 2019 WL
6221477, at *7 (N.D. Ohio July 8, 2019) (“[A] state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds a federal court sitting in
habeas corpus.”) (quoting Bradshaw vy. Richey, 546 U.S. 74, 76 (2005)), report and

petiod, suchevidence wasunavailiile at trial. Plaintiff therefore has not come forward with new evidence of actual
innocence. Nor is petitioner's claim of actual innocence compelling, given the other evidence of his guilt, including
McKinney’s identification of petitioner as one of the perpetrators and Hill’s testimony regarding petitioner's
admissions.
27

recommendation adopted, No. 1:17 CV 128, 2019 WL 4385735 (N.D. Ohio Sept. 13, 2019).
Because the Ohio state courts found that the admission of the evidence was proper, petitioner
cannot rely on the admission of that evidence to demonstrate prosecutorial misconduct. See
Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008) (“A prosecutor may rely in good faith on
evidentiary rulings made by the state trial judge and make arguments in reliance on those
tulings.”). See also Gumm vy. Mitchell, 775 F.3d 345, 380 (6th Cir. 2014) (“In light of the fact
that the Ohio Supreme Court (rightly or wrongly) determined that the prosecutor’s motion was
proper under Ohio evidentiary rules, it is difficult to say . . . that no reasonable jurist could agree
with the Ohio court’s conclusion that the prosecutor’s conduct did not violate Petitioner’s due
process rights.”),
Ground Three does not warrant habeas corpus relief.
D. Ground Four Should Be Denied.
Ground Four is the defaulted ineffective-assistance-of-trial-counsel claim addressed in
Ground Three. (See Doc. 1, at PageID 10 (checking box indicating that petitioner raised this
issue in his direct appeal)). For the reasons previously discussed, Ground Four is barred by
procedural default.
E. Ground Five Should Be Denied.
In Ground Five, petitioner contends that he was deprived of due process based on the trial
court’s failure to suppress identification testimony. As with the prior four grounds, the Court
understands Ground Five to mirror the identification issue raised on direct appeal. (Compare
Doc. 1, at PageID 16 (petition), with Doc. 6, at PageID 129 (brief on direct appeal)). There,
petitioner asserted that the identification evidence was unduly suggestive because (1) the
28

photographs used in the lineup were not reflective of the description provided by McKinney, and
(2) the investigating officer gave McKinney confirmatory feedback. (See Doc. 6, Ex. 17, at
PageID 130).
The Ohio Court of Appeals addressed petitioner’s due process claim on the merits,
finding that the procedures used in obtaining the pretrial identifications were not unduly
suggestive or unreliable:
Our review of a trial court’s ruling on a motion to suppress presents a mixed
question of law and fact. We must accept the trial court’s findings of fact if they
are supported by competent and credible evidence, but we review de novo the trial
court’s application of the law to the relevant facts. State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ] 8.
A two-part test is utilized to determine whether an eyewitness identification must
be suppressed. See State y. Neal, 1st Dist. Hamilton No. C140667, 2015—Ohio—
4705, § 28, citing Perry v. New Hampshire, 565 U.S. 228, 238239, 132 S.Ct. 716,
181 L.Ed.2d 694 (2012). First, the reviewing court must determine whether the
lineup procedure utilized was suggestive and unnecessary. /d. Second, if the lineup
is found to be suggestive and unnecessary, the court must determine whether the
identification was reliable under the totality of the circumstances, Jd. If the lineup
is not found to be suggestive and unnecessary, a court should not move on to the
second step of the analysis. Id. at □ 29.
The lineup shown to McKinney was not unduly suggestive. The photographs used
in the lineup did not contain height markers. So at the time that the identification
was made, McKinney was unaware that she was identifying a suspect that was taller
than the height description that she had provided. Further, the lineup was created
by Detective Vaughn using Ohio Law Enforcement Gateway, a computer system
that pulls photographs from various sources, including the Bureau of Motor
Vehicles. The photographs were shown to McKinney individually in sequential
order by a blind administrator, who had been completely unaware of any suspect or
person contained within the lineup.
Because the lineup was not unduly suggestive, we need not determine whether
McKinney’s identification was reliable under the totality of the circumstances. The
trial court did not err in failing to grant Brand’s motion to suppress.
Brand, 2016 WL 6269368, at *7-8.
29

A conviction based on identification testimony that follows a pretrial identification
violates due process when “the pretrial identification procedure is so ‘impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable misidentification.’” Ledbetter y.
Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994) (quoting Thigpen v. Cory, 804 F.2d 893, 895 (6th
Cir. 1986)) (in turn quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). To exclude
such identifications, a defendant must show that the identification procedure was unduly
suggestive and the identifications were not otherwise reliable. Nei/ v. Biggers, 409 U.S. 188,
199-200 (1972).
The Court must engage in a two-step analysis in deciding whether the accused’s right to
due process has been violated through the use of a pretrial identification procedure. Perry v.
New Hampshire, 565 U.S. 228, 238-39 (2012). First, “due process concerns arise only when law
enforcement officers use an identification procedure that is both suggestive and unnecessary.”
fd. (citing Manson v. Brathwaite, 432 U.S. 98, 107, 109 (1977)); Neil, 409 U.S. at 198. The
defendant bears the burden of proving this element. Ledbetter, 35 F.3d at 1071.
If the Court finds that the procedure was unduly suggestive, it must next evaluate the
“totality of the circumstances” to determine whether the trial identification was nevertheless
reliable. Perry, 565 U.S. at 239 (quoting Manson, 432 U.S. at 110). The factors to be
considered in assessing the reliability of the identification include: (1) the opportunity of the
witness to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the
accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated
by the witness when identifying the defendant; and (5) the length of time between the crime and

30

the identification. Manson, 432 U.S. at 114; Neil, 409 U.S. at 199-200; United States v.
Gatewood, 230 F.3d 186, 193 (6th Cir. 2000); Ledbetter, 35 F.3d at 1071.
“If. identification resulting from an unduly suggestive procedure is nevertheless
deemed reliable, it is admissible, ‘[nJotwithstanding the improper procedure’ used by the police.”
Wells v. Larose, No. 1:15-cv-298, 2017 WL 914694, at *16 (N.D. Ohio Jan. 12, 2017) (quoting
Perry, 565 U.S. at 240), report and recommendation adopted, 2017 WL 898007 (N.D. Ohio
Mar. 7, 2017); see also United States v. Washam, 468 F. App’x 568, 570-71 (6th Cir. 2012) (“To
exclude such identifications, a defendant must show that the identification procedure was unduly
suggestive and the identifications were not otherwise reliable.”).
Petitioner has failed to show that the Ohio Court of Appeals’ rejection of his
identification claims was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court; or was based on an unreasonable
determination of the facts in light of the evidence presented to the state courts. 28 U.S.C.
§ 2254(d). A pre-trial identification procedure is unduly suggestive if it “‘steer[s] the witness to
one suspect or another, independent of the witness’s honest recollection.” Wilson v. Mitchell,
250 F.3d 388, 397 (6th Cir. 2001). See also Schawitsch v. Burt, 491 F.3d 798, 802 (8th Cir.
2007) (“When there are no differences in appearance tending to isolate the accused’s photograph,
the identification procedure is not necessarily suggestive.”).
Petitioner does not contend that his picture stood out in any way from the other pictures
contained in the photographic array shown to McKinney. Nor has he established that the police
suggested to McKinney that she pick out a specific individual from the lineup. McKinney
testified that the officer administering the line-up did not tell her whom to choose or suggest
31

anyone. (Doc. 6-12 (transcript), at PageID 453). Rather, petitioner argues that including his
picture at all rendered the lineup unnecessarily suggestive because his build did not match the
description of the perpetrator’s build that McKinney gave to police. Detective Vaughn testified,
however, that McKinney may have been mistaken about the perpetrator’s height because she had
been looking down at him from the stairwell when she first encountered him. Brand, 2016 WL
6269368, at *2. Further, petitioner has failed to cite any authority requiring pictures in a
photographic array to match in every regard the description provided by the victim. Courts have
rejected such a requirement. See, e.g., Martinez y. Scribner, No. 06-1715, 2009 WL 2423100, at
*10 (C.D. Cal. Aug. 4, 2009) (“Petitioner has failed to cite any authority, and the Court has been
unable to locate any authority, holding that a lineup containing photographs of persons not
matching the description given by a witness is unconstitutional.”); see also United States v. Scott,
No. 10-00027-01-CR, 2011 WL 5387588, at *6 (W.D. Mo. Oct. 3, 2011) (finding that
photographic array containing pictures of individuals older than the perpetrator described by the
victim was not unnecessarily suggestive), report and recommendation adopted, 2011 WL
5387554 (W.D. Mo. Nov. 7, 2011). Petitioner also argues that the failure of the jury to reach a
verdict as to his co-defendant Isome illustrates the weakness in McKinney’s identification
testimony since she also identified Isome as a perpetrator. (Doc. 10, at PageID 2547). As set
forth above, it is the province of the jury to weigh the evidence. Jackson, 443 U.S. at 319.
Petitioner has not shown that McKinney’s identification of him as a perpetrator was the result of
an unduly suggestive procedure. See Neil, 409 U.S. at 199-200.
Next, the Ohio Court of Appeals reasonably found that petitioner failed to demonstrate
that McKinney’s in-court identification was tainted by comments Detective Vaughn made
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following her selection of petitioner from the lineup.°® First, petitioner has not established that
Detective Vaughn told McKinney that she had selected the correct suspect. McKinney testified
at the suppression hearing that Detective Vaughn had told her: “The person that you’ve
identified, we ‘re not saying that he have anything to do with it, but he just get arrested.” (Doc.
6-12 (transcript), at PageID 493 (emphasis added)). Moreover, even if Detective Vaughn had
confirmed McKinney’s choice, she had selected petitioner’s photograph without hesitation prior
to Vaughn’s allegedly suggestive comment being made. There is no indication that Detective
Vaughn’s comment influenced McKinney. See, e. g., Brantley v. Harry, No. 2:17-cv-13634,
2019 WL 2247733, at *7 (E.D. Mich. May 24, 201 9) (“[A] post-identification affirmation does
not render an antecedent lineup procedure unduly suggestive.”) (citing Gregory-Bey v. Hanks,
332 F.3d 1036, 1046-47 (7th Cir. 2003)). See also Armour vy. Horton, No. 19-1324, 2019 WL
4667607, at *3 (6th Cir. Aug. 16, 2019) (affirming district court’ s rejection of claim that post-
identification affirmation rendered the lineup procedure unduly suggestive); United States v.
Russell, 532 F.2d 1063, 1067-68 (6th Cir. 1976) (finding no error of misidentification where
witness selected photograph she believed to be the robber before suggestive comment was
made).
Ground Five does not warrant habeas corpus relief.
Accordingly, in sum, this Court concludes that petitioner is not entitled to federal habeas
corpus relief based on the grounds asserted in his petition.

‘Although the state appellate court did not explicitly address petitioner’s post-identification-confirmation
claim, this Court presumes that the state court rejected the claim on the merits. See Harrington v. Richter, 562 U.S.
86, 99 (2011); Johnson v. Williams, 568 U.S. 289, 301 (2013).
33

IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)
be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the claims alleged in the
petition, which this Court has concluded are waived and thus procedurally barred from review,
because under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel,
529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it debatable whether this Court is
correct in its procedural ruling.’
3. A certificate of appealability should not issue with respect to the claims alleged in the
petition, which have been addressed on the merits herein, because petitioner has not stated a
“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to
deserve encouragement to proceed further.” See Slack y. McDaniel, 529 U.S. 473, 475 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b).
4. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and, therefore, should DENY
petitioner leave to appeal in forma pauperis upon a showing of financial necessity, See Fed. R.

7 Because this Court finds that the first prong of the Slack standard has not been met in this case, it need not address
the second prong of S/ack as to whether or not “jurists of reason” would find it debatable whether petitioner has
stated a viable constitutional claim in any of his grounds aA relief. See Slack, 529 U.S. at 484.

App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: F[kO/ ROO es A Zitond
Karen L. Litkovitz
United States Magistrate Judge

35

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BARON BRAND, Case No. 1:18-cv-697
Petitioner,
Bertelsman, J.
vs. Litkovitz, M.J.
WARDEN, CORRECTIONAL
RECEPTION CENTER,
Respondent.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas y. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

36

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664811. Public record. Not legal advice.