Brown v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHRISTOPHER D. BROWN,

Petitioner, : Case No. 3:23-cv-305

- vs - District Judge Michael J. Newman

Magistrate Judge Michael R. Merz

WARDEN, London Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Christopher Brown under 28

U.S.C. § 2254. On Order of Magistrate Judge Caroline H. Gentry, the Respondent filed the State

Court Record (ECF No. 8) and a Return of Writ (ECF No. 9) and Petitioner has filed a Reply (ECF

No. 10), making the case ripe for decision. The Magistrate Judge reference in the case was recently

transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF

No. 11).

Litigation History

On April 29, 2022, a Montgomery County Grand Jury indicted Brown on one count of

robbery. A jury found Brown guilty as charged and he was sentenced to imprisonment for five to

seven and one-half years. Brown appealed to the Ohio Court of Appeals for the Second District

raising assignments of error that his conviction was not supported by sufficient evidence and was

against the manifest weight of the evidence. Both assignments were overruled and the conviction

affirmed. State v. Brown, 2023-Ohio-645 (Ohio App. 2nd Dist. Mar. 3, 2023). Although the Ohio

Supreme Court allowed Brown to file a delayed notice of appeal, it ultimately declined to exercise

jurisdiction. State v. Brown, 170 Ohio St.3d 1448 (2023).

Brown filed his Petition in this Court on October 5, 2023, the date he placed it in the prison

mailing system. He pleads one ground for relief:

GROUND ONE: The Appellant was denied the right to Due

Process and a Fair Trial in violation of the Fifth and Fourteenth

Amendments of the US. Constitution, and Art. I Section 10 of the

Ohio Constitution, when the conviction was not supported by

Sufficient Evidence.

(Petition, ECF No. 3, PageID 29).

Respondent raises no procedural defenses but claims the Second District’s decision is

entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No

104-132, 110 Stat. 1214)(the "AEDPA"). 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 (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); Hendrix

v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). 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.

An allegation that a verdict was entered upon insufficient evidence states a claim under the

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a

reasonable doubt. In re Winship, 397 U.S. at 364.

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

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

could have found the essential elements of the crime beyond a

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

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

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson). This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

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

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

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

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

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

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 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 deciding this case, the Second District Court of Appeals applied the correct Jackson v.

Virginia standard as it has been adopted in Ohio law in State v. Jenks, 61 Ohio St. 3d 259 (1991).

It held

{¶ 2} In April 2022, Amber Kilgore and her fiancé Michael Santana

were residing in a homeless shelter located on Apple Street in

Dayton. During the late night and early morning hours of April 7

and 8, 2022, Kilgore and Santana left the shelter and walked to visit

two friends who were living in an abandoned parking garage in

downtown Dayton. Upon arriving at the garage, Kilgore and

Santana walked up a ramp to the sixth floor, where their friends were

camped. The foursome played cards and listened to music. Later,

Kilgore and Santana got into an argument and walked to the ground

floor of the garage. Santana, who had possession of Kilgore's cell

phone, left and walked down the street. Kilgore waited

approximately 20 minutes before she walked back up the ramp to

her friends’ camp. Kilgore called out to her friends but received no

response. Believing her friends to be asleep, Kilgore began walking

back down the ramp.

{¶ 3} When Kilgore reached the third floor of the garage, she noted

a man holding a coffee cup. The man, using a “commanding” or

“threatening” tone, told her to “come over here.” Tr. p. 127. The

man told Kilgore that he “owned” the garage, that she was

“disrespectful,” and that he would “teach [her] a lesson.” Id. Kilgore

continued to walk down the ramp, and the man started walking

beside her. During the walk, he continued to call her disrespectful.

{¶ 4} Once the pair reached the ground floor, the man ordered

Kilgore to go into the garage ticket booth. Kilgore tried to walk

around the man, but he blocked her from exiting the garage. The

man then grabbed Kilgore's purse and began hitting her about the

head. Eventually, Kilgore fell to the floor, and the man began to kick

her while still trying to pull the purse away. Finally, the man gave a

hard tug and Kilgore released the purse. The man stumbled

backward, and Kilgore fled the garage.

{¶ 5} Kilgore ran back to the homeless shelter and banged on the

glass door, seeking entry. A security guard, Chris Schwieterman,

unlocked the door and admitted Kilgore into the building.

Schwieterman, who stated that Kilgore looked frantic and scared,

escorted her into an office where she related the attack to him.

Kilgore then used the office phone to call Santana, who advised her

to call the police. Kilgore then called the police and reported the

attack.

{¶ 6} In the meantime, Schwieterman contacted another security

officer and related information about the attack and a description of

the suspect. The officer, Nicholas Reed, was on patrol at the time.

Reed traveled to the parking garage, where he observed an

individual matching the description relayed to him by

Schwieterman. Reed drove his vehicle ahead of the man and pulled

to the side of the road. He then observed the man brandish an item

that appeared to be a gun. The man looked at Reed and asked, “what

the f**k are you going to do?” Reed then drove around the corner,

where he spotted two Dayton Police Department Officers. Reed

informed the officers of his interaction with the suspect and

requested the officers accompany him to the garage.

{¶ 7} Around the same time, Santana flagged down Dayton Police

Department patrol officer Joshua Blankley. Santana stated that he

had made an emergency call regarding an attack involving his

fiancée. While Blankley was speaking with Santana, he overheard a

radio dispatch concerning an armed suspect located at the

abandoned garage.

{¶ 8} Blankley then met the other two officers and Reed at the

garage. The group observed a light turn off in the ticket booth. The

officers eventually removed a man, later identified as Brown, from

the booth. The officers recovered Kilgore's purse which still

contained her identification. The officers also discovered a metal

barbell which Brown stated he carried for protection.

* * * * * *

{¶ 15} At trial, Kilgore testified to the events set forth above.

Specifically, she testified Brown hit her repeatedly while pulling her

purse away from her. Kilgore further testified that she suffered cuts

and bruises from the attack and that she had to go to the hospital

because she experienced severe pain in her rib area. Finally, Kilgore

made an in-court identification of Brown as her assailant.

{¶ 16} Kilgore's testimony, which was believed by the jury, was

sufficient to sustain the conviction. Additionally, the evidence

demonstrated that Brown was located by officers in the ticket booth

of the abandoned garage where Kilgore's purse was subsequently

found. Based upon this record, we conclude the State presented

competent, credible evidence upon which a reasonable juror could

rely in finding the elements of the offense were proven.

{¶ 17} Further, the jury was made aware of the differing descriptions

of the hat worn by the offender. We cannot say that the testimony of

any of the witnesses was rendered inherently incredible because of

the differing descriptions.

{¶ 18} “ ‘[T]he trier of fact is better situated than an appellate court

to view witnesses and to observe their demeanor, gestures, voice

inflections and to use those observations in weighing credibility.’ ”

State v. Jackson, 2015-Ohio-5490, 63 N.E.3d 410, ¶ 50 (2d Dist.),

citing State v. Lewis, 4th Dist. Scioto No. 01CA2787, 2002 WL

368625 (Feb. 25, 2002). Thus, we must give substantial deference

to the jury, which had the opportunity to see and hear the witnesses.

State v. Brown, supra.

In his Traverse, Brown argues forcefully that these are not the true facts of the incident.

The Response listed in [P2], that Kilgore and Santana went to the

Parking Garage to play cards with friends that were camped there.

Further stating that they walked to the sixth floor, via the ramp. The

alleged victim failed to state and counsel failed to challenge the

facts. This area is only used for drug use and homeless people.

There were no lights or table and chairs. It is not plausible that they

went there to play cards. The garage usually has about 8-10 people

on each level. There were no tents or enclosed structures on the

floors. She left because her and Santana were arguing and he took

off with her phone. Further there was no electricity for plugging in

a radio. However, they could have been listening to music through

the phone.

The Respondent fails to include the fact that Brown was a keeper of

the property, at the request of the owner. Kilgore’s friends on the

sixth level were dealing drugs and Kilgore and Santana only came

there for drugs. Brown was there to clean and reduce the drug traffic.

Kilgore was roaming around when Brown confronted her. She was

looking to score more drugs, mad at Santana, she sought the

company of Brown, who she knew through her friend upstairs. They

originally met on March 8, 2022. Brown only spoke to her because

she was roaming around. It is not disputed that Brown gave her

refuge in the office (ticket booth) on the ground level, because it was

cold and Brown had a heater. The facts are in disputed [sic] between

Kilgore and Brown. Kilgore was sitting in the booth with Brown

when she heard the voice of Santana calling her name. It was at that

point that she jetted out of the booth. Brown believes that she met

up with Santana, started walking back to the shelter, when she

realized that she left her purse. In an attempt to not further upset

Santana, Kilgore made up the attack story. She returned to the

shelter.

(Traverse, ECF No. 10, PageID 595-96).

Several observations about these recited facts are critical. First of all, Brown gives no

record citation for any of them, although he has been furnished with a copy of the trial transcripts

with PageID numbers and all parties were directed to make record references with those citations

(See Order for Answer, ECF No. 4, PageID 42).

Much more importantly, these factual statements are made by Brown as of his own personal

knowledge, but he did not testify, nor did the defense present any witnesses (Transcript, ECF No.

8-1, PageID 143). Even if Brown put all his statements of fact into an affidavit, the Court could

not consider it. A habeas corpus court is limited to the record which was before the state courts

when they decided the case. Cullen v. Pinholster, 563 U.S. 170 (2011); Shinn v. Ramirez, 596

U.S. 366 (2022).

Brown blames the jury’s reliance on Kilgore’s testimony on ineffective assistance of trial

counsel. However, he never raised a claim of ineffective assistance of trial counsel in the Ohio

courts and indeed has not pleaded one in his Petition.

As Respondent points out, the testimony of the victim alone is sufficient for conviction.

The Sixth Circuit has long held that the testimony of the victim alone is constitutionally sufficient

to sustain a conviction. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008), citing United States v.

Terry, 362 F.2d 914, 916 (6th Cir. 1966) ("The testimony of the prosecuting witness, if believed

by the jury, is sufficient to support a verdict of guilty."); see also O'Hara v. Brigano, 499 F.3d 492,

500 (6th Cir. 2007) (holding that victim's testimony that habeas petitioner abducted her and raped

her was constitutionally sufficient to sustain conviction despite lack of corroborating witness or

physical evidence); United States v. Howard, 218 F.3d 556, 565 (6th Cir. 2000) (holding that even

if the only evidence was testimony of the victim, that is sufficient to support a conviction, even

absent physical evidence or other corroboration); United States v. Jones, 102 F.3d 804, 807 (6th

Cir. 1996) (noting that there is sufficient evidence to support a conviction even if the

"circumstantial evidence does not remove every reasonable hypothesis except that of guilt")

(internal quotation marks omitted).

It is the jury’s responsibility to resolve inconsistencies in a victim’s testimony. The jury

in this case resolved those inconsistencies in favor of a guilty verdict. Had Brown testified, it

would also have been the jury’s responsibility to resolve inconsistencies between his and Kilgore’s

stories. But he never gave the jury his own story to work with.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition 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.

October 2, 2024.

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, but service is complete when the document is mailed, not when it is recetved. 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. #

10