Ray v. May

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TAQUASHONE RAY, ) CASE NO. 4:24-CV-00264-JRK

)

Plaintiff, )

) JUDGE JAMES R. KNEPP, II

vs. ) UNITED STATES DISTRICT JUDGE

)

WARDEN HAROLD MAY, ) MAGISTRATE JUDGE

) JONATHAN D. GREENBERG

Defendant. )

) REPORT & RECOMMENDATION

)

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the

Petition of Taquashone Ray (“Ray” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C.

§ 2254. Ray is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal

entry of sentence in the case State v. Ray, Mahoning County Court of Common Pleas, Case No. 2019 CR

930 A. For the following reasons, the undersigned recommends that the Petition be DENIED.

I. SUMMARY OF FACTS

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state

court, factual determinations made by state courts are presumed correct unless rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir.

2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the

facts underlying Ray’s conviction as follows:

{¶2} This case is related to but not consolidated with another appellate case,

State v. Shainquon Sharpe (22 MA 0021). Appellant and Sharpe were

codefendants in this matter and were tried jointly. This case only concerns

Appellant’s conviction and sentence.

{¶3} The incident at issue stemmed from an act of retaliation related to a

prior drug deal. In that prior criminal act, one of the victims in this matter,

Edward Morris, allegedly shot a man named Brian Benson during the drug-

deal-turned-robbery. According to the state, Benson decided to wait for

tensions to cool before he retaliated against Morris by putting out a request

for a “hit” on Morris. Appellant and Sharpe were apparently staying in the

Columbus area and learned that Benson was looking for someone to kill

Morris for him. (Trial Tr., p. 722.) It is noted that the state alleges Brian

Benson is also known by an alias, Jeffrey Johnson. However, due to the

state’s failure to provide certain discovery, the record is somewhat muddled

and confusing in this regard, as the trial court ruled (after certain witnesses

had already used the name Benson) that the state could not use this name

and was limited to calling this person by his alias.

{¶4} On October 31, 2018, Appellant's codefendant, Sharpe, exchanged the

following messages with a person referred to as “Bossman Young.” Young

is not further described within the record.

[Sharpe] Bet I won't be in Youngstown till 7. * * *

[Young] Okay. When you coming back? * * *

[Sharpe] When I get mobile and these guys up. * * * Guns up.

(Trial Tr., p. 953.) According to the state, this message reflects preparation

to accept and carry out the hit on Morris, as it refers to obtaining guns and

arranging travel to Youngstown.

{¶5} On November 1, 2018, Sharpe exchanged messages with a man named

Demetrius Dawson. As the record reflects only Sharpe’s side of the

conversation, Dawson’s messages are unknown. Similar to Young, there is

no further information or description of Dawson within the record.

[Sharpe] Shit you tell me. I'm trying to meet the nigga with that play

on Edward. * * * And I need 9 bullets. We was looking for some

more yesterday.

(Trial Tr., p. 960.)

{¶6} Again, the state’s theory is that this message was to further the killing,

as it reflects an attempt to contact the person ordering the hit and an attempt

to obtain ammunition.

{¶7} On November 4, 2018, Appellant messaged Johnson/Benson:

[Appellant] Shit you still want Ed or naw? * * *

[Johnson/Benson] I ain’t think about that shit. I’m doing me, bra.

But if it come down to it, then hey. * * *

[Appellant] I know you wasn't already know, bra, but I got him with

[sic] his bro where I want him, you know? [sic] * * * [C]all my

phone (330)881-0368 and we can talk about it when you're not busy,

bra, but I can get it done ASAP.

(Trial Tr., pp. 963-964.)

{¶8} On November 6, 2018, Sharpe texted a person named Chiana Sharpe:

“I need you to take me out east right now. I got a 10 band move.” (Trial Tr.,

p. 954.) According to testimony from law enforcement, ten bands refers to

$10,000, and the payment offered for the killing of Morris was $10,000.

These texts from both Appellant and Sharpe were offered by the state as

evidence that the two men both actively sought to accept and carry out the

hit together.

{¶9} Ultimately, there were three victims in this case: Edward Morris,

Valarcia Blair, and a three-month-old child named Tariq. Blair is the mother

of Tariq and it appears that Morris is the child’s father. On the day of the

incident, Blair was at her mother’s house in Youngstown before driving off

with Morris in his silver Saturn. Blair was in the front passenger seat and

Tariq was in a car seat in the back.

{¶10} Morris parked the Saturn along a devil strip on Pasadena Avenue in

Youngstown. Testimony at trial was offered to suggest that the house

nearest his parked car was a known drug house. A white Ford Focus pulled

up and parked in front of the Saturn. It is unclear what happened

immediately after the two vehicles parked, however, at 7:04 p.m. police

heard gunshots and a Spotshotter (a mechanism used to quickly alert law

enforcement to shots fired) reported gunshots on Pasadena.

{¶11} Youngstown Police Department Patrol Officer John Wess was the

first to respond to the scene. He had heard the shots fired while he was

having what he described as a late lunch in a nearby parking lot. He

immediately proceeded to the scene and arrived within a minute or so due

to his close proximity. He observed Morris in the driver seat of the parked

Saturn with visible gunshots wounds and significant bleeding. Patrolman

Wess noticed a gun on his lap, so he first retrieved the gun for officer safety

before tending to Morris. Morris was blinking and taking shallow breaths,

but as it was clear to Patrolman Wess that Morris would not survive, he

turned his attention to Blair.

{¶12} As Patrolman Wess attended to Blair, who also had gunshot wounds,

he noticed she kept gesturing with her head to the backseat. It was then that

Patrolman Wess saw the car seat. He immediately checked Tariq, who was

bloody and had sustained multiple gunshot wounds. Because the ambulance

was four minutes away, Patrolman Gregory Tackett and Patrolman Kelly

transported Tariq to the hospital in a patrol car. When the ambulance arrived

at the scene, it transported Blair to the hospital. The paramedics declared

Morris dead on the scene. Both Blair and Tariq succumbed to

their injuries at the hospital.

{¶13} Investigators located approximately thirty shell casings in and around

the Saturn. A single .45mm caliber shell matched the pistol Morris had on

his lap when police arrived. At least nineteen of the casings were 7.62 by

.39mm caliber, consistent with ammunition used in an AK-47 rifle. The

remaining shell casings were consistent with a .39mm caliber firearm and

appeared to come from a Luger handgun.

{¶14} Ten minutes after the shooting, Appellant messaged Johnson/Benson:

[Appellant] Check and mate. * * *

[Johnson/Benson] [W]hat’s popping? * * *

[Appellant] Call me (330)881-0368. * * *

[Johnson/Benson] In the car deep. * * *

[Appellant] Job done.

(Trial Tr., pp. 964-965.)

{¶15} A witness told investigators that they did not see the shooting, but

had observed a man standing near the hood of the Ford Focus who took off

running northbound on Gibson immediately after the shooting. Law

enforcement quickly turned their attention to the Ford Focus and learned

that it belonged to a woman named Michelle Douglas.

{¶16} According to Douglas, she had just begun dating Sharpe, whom she

referred to as “Mann Mann.” On the day of the shooting, she had picked up

Sharpe earlier in the day and they went to a Taco Bell. While there, Sharpe

texted someone named “Little” and told Douglas that they needed to pick

him up at Wick Park. At trial, Douglas identified Appellant as “Little.”

(Trial Tr., p. 641.) She drove the two men to her place of work and then let

them use her car. They later picked her up at work and dropped her off at a

plaza, where her friend picked her up and took her to a birthday party, so

that they could keep her car. Around 8:34 p.m. that day, Sharpe informed

Douglas that her car was parked on Pasadena and she would not be getting

it back any time soon. He did not explain why but urged her to stay away

from the Pasadena area.

{¶17} When police interviewed Sharpe, he informed Detective Ronald

Barber, Jr., that Appellant is his cousin and that they lived in Columbus. He

denied that he had been on Pasadena Avenue on the night of the shooting,

claiming that he had been at his cousin Kenneth’s house on the northwest

side of Youngstown.

{¶18} Appellant gave police investigators conflicting stories. He first said

that his car had broken down and he left it near the intersection of Pasadena

and Gibson. He then told investigators that he went to Pasadena Avenue to

buy marijuana at the drug house. While he was still inside his car, he heard

gun fire and ducked down inside of the car until the gun fire ceased. When

the shooting stopped, he claims the car would not start so he exited and ran

down Gibson to a gas station, where he called his brother to pick him up.

{¶19} The Ohio Bureau of Criminal Investigation crime lab discovered

DNA on one of the .39mm shell casings. This DNA alerted police to a

possible match through the Combined DNA Index System (“CODIS”).

CODIS matched Sharpe to the DNA found at the scene. When they learned

of this alert, police obtained a warrant for a DNA sample from Sharpe.

Testing showed Sharpe was a likely contributor of the DNA on the casing.

Appellant had agreed to submit a DNA sample before he learned of the

DNA on the shell casing. However, as the only usable DNA had included

Sharpe, investigators saw no need to obtain Appellant’s sample.

{¶20} Cell phone records were admitted to show various text messages and

calls by the pair. The records were also admitted to show that Appellant’s

cell phone “pinged” off a nearby cell phone tower and placed him near the

scene. (Trial Tr., p. 932.) Roughly one half hour before the shooting, the

towers appear to show that Appellant traveled from the north side of

Youngstown to the scene. One minute after the shooting, the outer perimeter

of a circle marking his location on a map included the sidewalk in front of

the scene of the shooting. The towers showed him then travelling northwest

of the scene until Sharpe used Appellant’s phone in an area located on the

west side to call to Douglas.

{¶21} An autopsy revealed that Morris suffered six gunshot wounds to the

head, neck, and trunk. Blair had five gunshot wounds to the trunk and upper

right extremity. Tariq had multiple gunshot wounds, most significantly to

his torso and upper thigh.

{¶22} Appellant and Sharpe were charged in a single indictment with nine

counts pertaining to both defendants, one pertaining solely to Appellant, and

one solely attributed to Sharpe. The joint charges included: three counts of

aggravated murder, unspecified felonies in violation of RC. 2903.01 (A)(F),

RC. 2929.02(A); one count of aggravated murder, an unspecified felony in

violation of RC. 2903.01 (C)(F), RC. 2929.02(A); three counts of murder,

unspecified felonies in violation of RC. 2903.02(A)(D), RC. 2929.02(8);

one count of obstruction of justice, a felony of the third degree in violation

of RC. 2921.32(A)(5), (C)(4); and one count of improperly discharging a

firearm at or into a habitation, a felony of the second degree in violation of

R.C. 2923.61(A)(1), (C). Except for the obstruction charge, each charge

carried an attenuated firearm specification in violation of R.C. 2941.145(A).

In addition, Appellant was charged with having weapons while under a

disability, a felony of the third degree in violation of R.C. 2923.13(A)(3)(8)

with an attenuated firearm specification.

{¶23} On January 11, 2021, Appellant filed several motions, including a

motion to sever the trial. Although the court initially granted this motion,

the state later filed a motion for reconsideration of this issue which the court

granted.

{¶24} After a thirteen-day trial, the jury convicted both codefendants on all

counts as charged in the indictment. On February 28, 2022, after

considering merger issues, the trial court sentenced Appellant to the

following: life without parole until after thirty years (Count I), life without

parole until after thirty years (Count II), life without parole until after thirty

years (Count III), five years of incarceration (Count XI) and three years for

each of the four firearm specifications. The firearm specifications were

ordered to run consecutively and prior to the remaining sentences, which

were also ordered to run consecutively. It is from this entry that Appellant

timely appeals.

State v. Ray, 7th Dist. Mahoning, No. 22MA0026, 2023-Ohio-2375, ¶¶2-24.

II. PROCEDURAL HISTORY

A. Trial Court Proceedings

On October 31, 2019, the Mahoning County Grand Jury indicated Ray, and his co-defendant,

Shainquon Sharpe, on the following charges: four counts of aggravated murder (Counts 1, 2, 3 and 4), one

count of obstructing justice (Count 9), one count of having a weapon while under a disability (Count 10),

and one count of improperly discharging a firearm at or into a habitation or school safety zone (Count 11).

(Doc. No. 10-1, Ex. 1.) All counts had a three-year firearm specification. (Id.) Ray entered a plea of not

guilty to all charges. (Doc. No. 10-1, Ex. 2.)

On May 19, 2021, Ray filed a Motion for Severance, requesting a separate trial from his co-

defendant. (Doc. No. 10-1, Ex. 3.) On May 25, 2021, the trial court granted the Motion for Severance. (Doc.

No. 10-1, Ex. 4.) On September 22, 2021, the State filed a Motion to Reconsider Separate Trials. (Doc. No.

10-1, Ex. 5.) On September 24, 2021, Ray filed an opposition. (Doc. No. 10-1, Ex. 6.) Ray and his co-

defendant were tried jointly. (Doc. No. 10-1, Ex. 15 at ¶2.)

The case proceeded to jury trial on January 25, 2022. (Doc. No. 10-1, Ex. 7.) On February 10, 2022,

the jury returned its verdict, finding Ray guilty of four counts of aggravated murder, three counts of murder,

one count of obstructing justice, one count of having a weapon while under a disability, and one count of

improperly discharging a firearm at or into a habitation or a school safety zone. (Id.; see also Doc. No. 10-

1, Ex. 8.) On February 18, 2022, the trial court filed an Amended Judgment Entry of conviction. (Doc. No.

10-1, Ex. 9.)

On February 18, 2022, the state trial court held a sentencing hearing. (Doc. No. 10-1, Ex. 10.) The

trial court merged the offenses for sentencing purposes and sentenced Ray to serve twelve years on the

mandatory firearm specification, followed by three consecutive life sentences with parole eligibility after 90

years, followed by a five-year sentence on Count 11. (Doc. No. 10-1, Ex. 10.)

B. Direct Appeal

Ray, through counsel, filed a timely notice of appeal to the Seventh District Court of Appeals,

Mahoning County, Ohio. (Doc. No. 10-1, Ex. 11.) In his appellate brief, he raised the following assignments

of error:

I. Appellant’s Convictions Were Against the Manifest Weight of the Evidence

II. Appellant’s Convictions Were Unsupported by Sufficient Evidence

III. The Trial Court Erred by Granting the State’s Motion to Reconsider Joinder

After First Granting Appellant's Motion to Sever

IV. Appellant’s Sentence is Contrary to Law Because the Record Does Not Support

the Imposition of Consecutive Sentences

(Doc. No. 10-1, Ex. 13.)

The State filed a brief in response. (Doc. No. 10-1, Ex. 14.) On June 30, 2023, the state appellate

court affirmed Ray’s convictions. (Doc. No. 10-1, Ex. 15.) On September 18, 2023, Ray, proceeding pro se,

filed a Notice of Appeal with the Supreme Court of Ohio and a “Motion for Leave to File a Delayed Appeal

Pursuant to S.Ct.R. 7.01(A)(4).”. (Doc. No. 10-1, Exs. 16, 17.) On November 7, 2023, the Ohio Supreme

Court denied Ray’s motion for delayed appeal. (Doc. No. 10-1, Ex. 18.)

C. Federal Habeas Petition

On February 12, 2024,1 Ray, pro se, filed a Petition for Writ of Habeas Corpus in this Court and

asserted the following grounds for relief:

GROUND ONE: Petitioner’s Convictions Were Against the Manifest Weight of

the Evidence.

GROUND TWO: Petitioner’s Convictions Were Unsupported by Sufficient

Evidence.

GROUND THREE: The Trial Court Erred by Granting the State’s Motion to

Reconsider Joinder After First Granting Petitioner’s Motion to Sever.

(Doc. No. 1.)

On September 10, 2024, Warden Harold May (“Respondent”) filed his Return of Writ. (Doc. No.

10.) Ray did not file a Traverse.

1 Under the mailbox rule, the filing date for a pro se petition is the date that a petitioner delivers it to

prison authorities. See Houston v. Lack, 487 U.S. 266 (1988). Ray did not disclose when he delivered the

Petition to prison authorities, thus the Court will consider the Petition as filed on February 12, 2024, the

date the Court received the Petition. There is no challenge regarding the timeliness of the Petition.

III. EXHAUSTION AND PROCEDURAL DEFAULT

A. Legal Standard

Petitioners must exhaust their state remedies prior to raising claims in federal habeas corpus

proceedings. See 28 U.S.C. § 2254(b),( c). This requirement is satisfied “when the highest court in the state

in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s

claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990).

Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner

demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim

would result in a fundamental miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.

2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A claim may

become procedurally defaulted in two ways. Id. First, a petitioner may procedurally default a claim by

failing to comply with state procedural rules in presenting his claim to the appropriate state court. Id.; see

also Maupin v. Smith, 785F.2d 135, 138 (6th Cir. 1986). If, due to petitioner’s failure to comply with the

procedural rule, the state court declines to reach the merits of the issue, and the state procedural rule is an

independent and adequate grounds for precluding relief, the claim is procedurally defaulted.2 Id.

Second, a petitioner may also procedurally default a claim by failing to raise and pursue that claim

through the state’s “ordinary appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119

2 In Maupin, the Sixth Circuit established a four-step analysis to determine whether a claim is procedurally

defaulted. 785 F.2d at 135. Under this test, the Court decides (1) whether the petitioner failed to comply

with an applicable state procedural rule, (2) whether the state courts actually enforced the state procedural

sanction, (3) whether the state procedural bar is an “independent and adequate” state ground on which the

state can foreclose federal review, and (4) whether the petitioner has demonstrated “cause” and

“prejudice.” Id. at 138–39; Barkley v. Konteh, 240 F. Supp.2d 708 (N.D. Ohio 2002). “In determining

whether a state court actually enforced a procedural rule, we apply the ‘plain statement’ rule of Michigan

v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)”; Lovins v. Parker, 712 F.3d 283, 296

(6th Cir. 2013) (“a procedural default does not bar consideration of a federal claim on either direct or

habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states

that its judgment rests on the procedural bar.”) (citations omitted).

S.Ct. 1728, 144 L.Ed.2d 1 (1999). If, at the time of the federal habeas petition, state law no longer allows

the petitioner to raise the claim, it is procedurally defaulted. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102

S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731–32, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991); Lovins, 712 F.3d 283, 295 (6th Cir. 2013) (“a claim is procedurally defaulted where

the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the

federal petition is filed because of a state procedural rule.”) This second type of procedural default is often

confused with exhaustion. Exhaustion and procedural default, however, are distinct concepts. AEDPA’s

exhaustion requirement only “refers to remedies still available at the time of the federal petition.” Engle,

456 U.S. at 125 n. 28. Where state court remedies are no longer available to a petitioner because he failed

to use them within the required time period, procedural default and not exhaustion bars federal court review.

Id. In Ohio, a petitioner is not entitled to raise claims in post-conviction proceedings where those claims

could have been raised on direct appeal. Id. Thus, if an Ohio petitioner failed to raise a claim on direct

appeal, which could have been raised, the claim is procedurally defaulted. Id.

A claim is adequately raised on direct appeal if it was “fairly presented” to the state court. To fairly

present a claim to a state court a petitioner must assert both the legal and factual basis for his claim. See

McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a “petitioner must present his claim

to the state courts as a federal constitutional issue – not merely as an issue arising under state law.” Koontz

v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A petitioner can take four actions in his brief which are

significant to the determination as to whether a claim has been fairly presented as a federal constitutional

claim: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases

employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms

sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the

mainstream of constitutional law. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

A petitioner’s procedural default, however, may be excused upon a showing of “cause” for the

procedural default and “actual prejudice” from the alleged error. See Maupin, 785 F.2d at 138–39.

“Demonstrating cause requires showing that an ‘objective factor external to the defense impeded counsel’s

efforts to comply’ with the state procedural rule.” Franklin v. Anderson, 434 F.3d 412, 417 (6th Cir. 2006)

(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Meanwhile, “[d]emonstrating prejudice requires

showing that the trial was infected with constitutional error.” Id. Where there is strong evidence of a

petitioner’s guilt and the evidence supporting petitioner’s claim is weak, the actual prejudice requirement is

not satisfied. See United States v. Frady, 456 U.S. 152, 172, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Perkins

v.LeCureux, 58 F.3d 214, 219–20 (6th Cir. 1995); Rust v. Zent, 17 F.3d 155, 161-62 (6th Cir. 1994).

Prejudice does not occur unless petitioner demonstrates “a reasonable probability” that the outcome of the

trial would have been different. See Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003) (citing Strickler

v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

Finally, a petitioner’s procedural default may also be excused where a petitioner is actually innocent

in order to prevent a “manifest injustice.” See Coleman v. Thompson, 501 U.S.722, 749–50, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991). Conclusory statements are not enough – a petitioner must “support his allegations

of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v.

Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). See also Jones v. Bradshaw, 489 F.

Supp.2d 786, 807 (N.D. Ohio 2007); Allen v. Harry, 2012 WL 3711552 at * 7 (6th Cir. Aug. 29, 2012).

B. Application to Petitioner

Respondent argues Ray’s Petition must be dismissed because he failed to accomplish one complete

round of state appellate review due to his failure to timely appeal to the Ohio Supreme Court and the Ohio

Supreme Court rejecting Ray’s Motion for Leave to File a Delayed Appeal. (Doc. No. 10 at 14.) Ohio R.

Prac. S. Ct. 7.01(A)(1)(a)(i) provides an “appellant shall file a notice of appeal in the Supreme Court within

forty-five days from the entry of the judgment being appealed.” Here, the Court of Appeals issued its

judgment on June 30, 2023. (Doc. No. 10-1, Ex. 15.) Ray filed his Notice of Appeal and Motion for Leave

to File a Delayed Appeal on September 18, 2023 – well after the forty-five-day requirement. Because the

state court was denied the opportunity to review Ray’s claims due to his failure to raise the issues within the

time provide by the rule, his claims are procedurally defaulted. See O’Sullivan, 526 U.S. at 848; Engle, 456

U.S. at 125 n.28.

Despite this failure, Ray can obtain merits review if he can show both cause and prejudice. See

Maupin, 785 F.2d at 138–39. To show cause, an external factor must be shown to impede efforts to comply

with the procedural rule. See Franklin, 434 F.3d at 417. Prejudice is not shown unless Ray demonstrates

that there is a “reasonable probability” that the outcome would have been different. See Mason, 320 F.3d at

629. Here, Ray asserted in his Motion for Leave to File a Delayed Appeal that he did not file on time due to

his “diabetic condition problems.” (Doc. No. 10-1, Ex. 17.) Ray failed to offer any specific details and

explanation on why or how his “diabetic condition problems” caused his failure to comply with Ohio R.

Prac. S. Ct. 7.01(A)(1)(a)(i). The Court finds Ray has not demonstrated cause.

In the absence of cause, a court need not reach the issue of prejudice. See Simpson v. Jones, 238 F.3d

399, 409 (6th Cir. 2000); Sandridge v. Buchanan, 1:16CV2299, 2017 WL 2255378, at *11 (N.D. Ohio April

27, 2017); Grp. v. Robinson, 158 F. Supp. 3d 632, 651 (N.D. Ohio 2016).

Finally, Ray proffered no new, reliable evidence to support actual innocence. (Doc. No. 10-1, Ex.

17.) The Court finds Ray has not demonstrated he is entitled to the actual innocence exception.

The Court recommends finding that Ray’s claims are procedurally defaulted.

IV. REVIEW ON THE MERITS

A. Legal Standard

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997). The relevant provisions of AEDPA

state:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d) (1996).

Clearly established federal law is to be determined by the holdings (as opposed to the dicta) of the

United States Supreme Court. See Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012);

Renico v Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865-1866 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120

S.Ct. 1495, 146 L.Ed.2d 389 (2000); Shimel v.Warren, 838 F.3d 685, 695 (6th Cir. 2016); Ruimveld v.

Birkett, 404 F.3d 1006, 1010 (6th Cir.2005). Indeed, the Supreme Court has indicated that circuit precedent

does not constitute “clearly established Federal law, as determined by the Supreme Court.” Parker, 567

U.S. at 48-49; Howes v. Walker, 567 U.S. 901, 132 S.Ct. 2741, 183 L.Ed.2d 612 (2012). See also Lopez

v.Smith, ––– U.S. ––––, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) (“Circuit precedent cannot ‘refine

or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has

not announced.’” (quoting Marshall v. Rodgers, 569 U.S. 58, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540

(2013))).

A state court’s decision is contrary to clearly established federal law “if 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.” Williams v.

Taylor, 529 U.S. at 413. By contrast, a state court’s decision involves an unreasonable application of clearly

established federal law “if 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.” Id. See also

Shimel, 838 F.3d at 695. However, a federal district court may not find a state court’s decision unreasonable

“simply because that court concludes in its independent judgment that the relevant state court decision applied

clearly established federal law erroneously or incorrectly.” Williams v. Taylor, 529 U.S. at 411. Rather, a

federal district court must determine whether the state court’s decision constituted an objectively

unreasonable application of federal law. Id. at 410-12. “This standard generally requires that federal courts

defer to state-court decisions.” Strickland v. Pitcher, 162 Fed. Appx. 511, 516 (6th Cir. 2006) (citing Herbert

v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)).

In Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court

held that as long as “fairminded jurists could disagree on the correctness of the state court’s decision,” relief

is precluded under the AEDPA. Id. at 786 (internal quotation marks omitted). The Court admonished that

a reviewing court may not “treat[ ] the reasonableness question as a test of its confidence in the result it

would reach under de novo review,” and that “even a strong case for relief does not mean the state court's

contrary conclusion was unreasonable.” Id. at 785. The Court noted that Section 2254(d) “reflects the view

that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems” and does

not function as a “substitute for ordinary error correction through appeal.” Id. (internal quotation marks

omitted). Therefore, a petitioner “must show that the state court’s ruling . . . was so lacking in justification

that there was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 786–87. This is a very high standard, which the Supreme Court readily

acknowledged. See id. at 786 (“If this standard is difficult to meet, that is because it is meant to be.”)

B. Analysis

1. Grounds One and Two

In Ground One, Ray argues his convictions were against the manifest weight of evidence. (Doc. No.

1, p. 1.) He claims he was “wrongfully found convicted and sentenced to a triple murder that he did not

commit.” (Id. at p. 2.) He states his co-defendant, Shai’quan Sharpe, shot the individuals while Ray was

seated in a car that had broken down. (Id.) He states the trial court and appellate court erred by “unduly

decid[ing] to restrict ‘nlack [sic] jurors’ from the jury box . . .” (Id.)

Respondent argues that a claim that a verdict was against the manifest weight of evidence is not

cognizable before this court because it requires the appellate court to act as a “thirteenth juror” to determine

whether the jury created a manifest miscarriage of justice such that the conviction must be overturned and

a new trial ordered. (Doc. No. 10, at p. 16.)

In Ground Two, Ray claims his conviction was unsupported by sufficient evidence. (Doc. No. 1, p.

5.) He asserts the evidence offered was “thin and unpersuasive.” (Id.) Ray argues the State did not present

any direct evidence, including no eye witnesses, no witness identifying Ray, and no physical evidence such

as fingerprints or DNA linking Ray to the murders. (Id.)

Respondent argues there was sufficient evidence to convict under the doubly differential standard or

review, citing Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir.2018). (Doc. No. 10, pp. 17-22.)

Respondent states that although circumstantial, the evidence presented is sufficient to support conviction

because he was at the scene, communications show he was involved in the planning, and he offered

inconsistent improbable statements. (Id. at p. 22.)

As Ray failed to file a Traverse, Respondent’s arguments are unopposed.

Ray raised manifest weight of evidence and sufficiency of evidence arguments to the state appellate

court. (Doc. No. 10-1, Ex. 13.) The state appellate court considered the claims on the merits and rejected

both as follows:

{¶25} In his first two assignments of error, Appellant relies on essentially

the same arguments in contending that his convictions are against the

manifest weight of the evidence and are not supported by sufficient

evidence. In both, Appellant solely attacks the question of the identity of

the perpetrator and does not contest any other element. He argues that the

investigation was deficient, incomplete, and that there was no direct

evidence linking him to the crime. Appellant argues that law enforcement

made no attempt to obtain his DNA even though he made himself available

for such purpose, did not retrieve fingerprints at the scene, did not test any

of the phones, and failed to investigate whether a resident at a nearby house

could have been responsible for the shooting. Appellant also cites to

evidence that Sharpe used Appellant's phone to call Michelle Douglas the

night of the shooting and alleges that in November of 2018, someone used

Appellant's Face book account while Appellant was jailed. Thus, Appellant

claims the messages relied on by the state may not have come from him.

{¶26} ln response, the state argues that Appellant admitted he was at the

scene at the time of the shooting, and that he fled. The state also cites

evidence showing an overarching plan that began when Johnson/Benson

offered ten thousand dollars for someone to kill Morris. The states asserts

that in text and Facebook messages from Appellant’s account he asked

Johnson/Benson if he still sought a hit on Morris. In addition, Appellant

sent Johnson/Benson two messages fifteen minutes after the shooting

saying “check and mate” and “job done.” (Trial Tr., pp. 964-965.)

{¶27} “Sufficiency of the evidence is a legal question dealing with

adequacy.” State v. Pepin-Mccaffrey, 186 Ohio App.3d 548, 2010-Ohio-

617, 929 N.E.2d 476, ¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997). “Sufficiency is a term of art

meaning that legal standard which is applied to determine whether a case

may go to the jury or whether evidence is legally sufficient to support the

jury verdict as a matter of law.” State v. Draper, 7th Dist. Jefferson No. 07

JE 45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486,

124 N.E.2d 148 (1955). When reviewing a conviction for sufficiency of the

evidence, a reviewing court does not determine “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.” State v. Rucci, 7th Dist. Mahoning

No. 13 MA 34, 2015-Ohio-1882, 1114, citing State v. Merritt, 7th Dist.

Mahoning No. 09-JE-26, 2011-Ohio-1468, ¶ 34.

{¶28} In reviewing a sufficiency of the evidence argument, the evidence

and all rational inferences are evaluated in the light most favorable to the

prosecution. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998).

A conviction cannot be reversed on the grounds of sufficiency unless the

reviewing court determines no rational juror could have found the elements

of the offense proven beyond a reasonable doubt. Id.

{¶29} Weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other.” (Emphasis deleted.) State v. Thompkins, 78

Ohio St.3d 380,387,678 N.E.2d 541 (1997). It is not a question of

mathematics, but depends on the effect of the evidence in inducing belief.

Id. Weight of the evidence involves the state's burden of persuasion. Id. at

390, 678 N.E.2d 541 (Cook, J. concurring). The appellate court reviews the

entire record, weighs the evidence and all reasonable inferences, considers

the credibility of witnesses, and determines whether, in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed. State v. Lang,

129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, 1l 220, citing

Thompkins, at 387,678 N.E.3d 541,678 N.E.2d 541. This discretionary

power of the appellate court to reverse a conviction is to be exercised only

in the exceptional case in which the evidence weighs heavily against the

conviction. Id.

{¶30} “[T]he weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, 1J 118, quoting State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus. The trier of fact is in the best position to weigh the evidence and

judge the witnesses’ credibility by observing their gestures, voice

inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984).

{¶31} Jurors are free to believe some, all, or none of each witness’ testimony

and they may separate the credible parts of the testimony from the incredible

parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282,

¶ 42, citing State v. Mastel, 26 Ohio St2d 170, 176, 270 N.E.2d 650 (1971).

When the record presents two fairly reasonable views of the evidence or

two conflicting versions of events, neither of which is unbelievable, we will

not choose which one is more credible. State v. Gore, 131 Ohio App.3d

197,201, 722 N.E.2d 125 (7th Dist.1999).

{¶32} Appellant challenges only the jury’s determination that he was

involved in the shooting and does not contest any other element of the

crimes. This record reveals this case was built largely on circumstantial

evidence, however, unlike his codefendant, investigators were able to place

Appellant at the scene of the crime at the moment the shooting occurred.

{¶33} The state’s theory of the case was that Appellant and his codefendant

were involved in a scheme to carry out a murder for hire, or a “hit,” on

Morris. The hit was ordered by Johnson/Benson and investigators were able

to present evidence at trial showing the steps taken by Appellant and his

codefendant to carry out this killing.

{¶34} On November 4, 2018, Appellant messaged Johnson/Benson and

appears to confirm the hit on Morris was still sought. (Trial Tr., pp. 963-

964.)

{¶35} On November 6, 2018, Sharpe messaged a person named Chiana

Sharpe: “I need you to take me out east right now. I got a 10 band move.”

(Trial Tr., p. 954.) According to testimony from law enforcement, "ten

bands" refers to $10,000. This evidence was used to support the theory that

Appellant and Sharpe planned to carry out the “hit” and receive the $10,000

offered by Johnson/Benson.

{¶36} Ten minutes after the shooting, Appellant messaged Johnson/Benson:

[Appellant] Check and mate. * * *

* * *

[Appellant] Job done.

(Trial Tr., pp. 964-965.)

{¶37} Investigators were also able to physically place Appellant at the crime

scene at the time of the shooting. During Appellant's first interview with

investigators, Appellant told them that he had no knowledge of the crime,

that his car had broken down and he was forced to leave it on Pasadena

Avenue before the shooting occurred. When Appellant was told that a

witness saw a man running from the vehicle after the shooting, he then

admitted he was present during the shooting. He claimed that when he heard

gunshots he ducked down and hid inside his vehicle. When the shots

stopped, he attempted to drive away. The car would not start, however, so

he got out and ran away on foot.

{¶38} There are several problems with Appellant's second version of the

facts. The vehicle he claimed to be hiding in had sustained multiple bullet

holes, but he claims he miraculously escaped unharmed. He never provided

any description of the persons he alleged were actually the shooters and

never called the police about the crime. He never explained the coincidence

of being present at the scene of this shooting at the exact moment it was

accomplished, after he had exchanged text messages regarding a hit on one

of the victims. The record also reveals he had used Morris’ first name in a

text message to Johnson/Benson in discussing the proposed hit.

{¶39} Appellant argues that there is no evidence that the text messages are

to be interpreted in the manner the state contended and that there is no

evidence he actually sent those messages. Contrary to his contentions, read

together the meaning of the messages appears clear. The messages do reflect

a plan to kill Morris for money, and more than one message sent from

phones owned by Appellant and Sharpe identified Morris by his first name.

Further, Appellant's codefendant Sharpe phoned his mother from jail and

asked her to call a number that belonged to Johnson/Benson. In the recorded

call, Sharpe asked his mother to arrange for someone she trusted to pick up

his money from the person she was to call, and who he would not identify

by name. He told his mother that he was owed $5,000. Five thousand dollars

is half of the amount Appellant and his codefendant were promised for

carrying out the killing.

{¶40} Appellant implies the identity of the person who sent the message

from his phone is in question. However, he admitted the phone belonged to

him. The jury could presume he sent those text messages absent evidence

clearly to the contrary. While Appellant alleges there was a period of time

when he was incarcerated in 2018 that someone else used his Facebook

account, there is evidence his passwords were later changed with no further

problem. We note that most of the incriminating messages were in the form

of text messages, not Facebook messages. Further, while Appellant claims

that someone may have been using his phone the night of the shooting, he

admits that he called his brother immediately after the shooting to pick him

up at a gas station. Hence, the record contains unrefuted evidence that

Appellant's phone was in his possession at least on the day of the crime. The

text messages stating “check mate” and “job done” were sent ten minutes

after the shooting. In addition, cell phone tower pings place Appellant’s

phone at the scene of the shooting and subsequent tracking follows a path

similar to the one Appellant described he used to flee the scene.

{¶41} Appellant also complains that police did not investigate the owner of

the house located near the shooting. Testimony was produced that the house

was known as a drug house and that the owner was arrested the day after

the shooting and was armed with a 9mm firearm. However, testimony was

also introduced that the gun did not match any of the weapons used to kill

the victims in this case and there was no evidence linking that man to this

shooting or these victims.

{¶42} Appellant contends that there is no evidence that he knew Morris.

However, a text message sent from his phone to Johnson/Benson stated:

“Shit you still want Ed or naw?” Morris’ first name is Edward. This is no

indication that this text message was sent by anyone other than Appellant.

Whether or not Appellant was personally acquainted with Morris, Appellant

clearly knew he intended to accept an offer to kill Morris for money if the

offer was still available.

{¶43} While there is no question that the case was built on circumstantial

evidence, “[c]ircumstantial evidence and direct evidence inherently possess

the same probative value.” State v. Prieto, 7th Dist. Mahoning No. 15 MA

0200, 411 34, citing In re Washington, 81 Ohio St.3d 337, 340, 691 N.E.2d

285 (1998); State v. Jenks, 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492

(1991), paragraph one of the syllabus. In fact, “[e]vidence supporting the

verdict may be found solely through circumstantial evidence.” State v.

Smith, 7th Dist. Belmont No. 06 BE 22, 2008-Ohio-1670, 41149.

{¶44} As such, Appellant’s first and second assignments of error are

without merit and are overruled.

Ray, 2023 WL 4485409, ¶¶ 25-44.

a. Manifest Weight of Evidence

“[A] claim that a conviction is against the manifest weight of the evidence is not cognizable upon

federal habeas review.” Williams v. Jenkins, No. 1:15CV00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb.

22, 2016), report and recommendation adopted, No. 1:15 CV 00567, 2016 WL 1732928 (N.D. Ohio May 2,

2016), citing Nash v. Eberlin, 258 Fed.Appx. 761, 765, n. 4 (6th Cir. 2007); Hess v. Eberlin, 2006 U.S. Dist.

LEXIS 99990, 2006 WL 2090093 (S.D. Ohio 2006) (citing Walker v. Engle, 703 F.2d 959, 969 (6th Cir.

1983)). Ray’s First Ground is non-cognizable. It is therefore recommended that Ground One be DENIED.

b. Insufficiency of the Evidence

The Due Process Clause of the Fourteenth Amendment requires that a criminal conviction be

supported by proof beyond a reasonable doubt with respect to every fact necessary to constitute the offense

charged. In re Winship, 397 U.S. 358, 363–64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The standard for

determining if a conviction is supported by sufficient evidence is “whether after reviewing 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 v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979). In making such a determination, a district court may not substitute its own determination of

guilt or innocence for that of the factfinder, nor may it weigh the credibility of witnesses. Id. See also

Walker v. Engle, 703 F.2d 959, 970 (6th Cir. 1983). Moreover, federal courts are required to give deference

to factual determinations made in state court and “[a]ny conflicting inferences arising from the record . . .

should be resolved in favor of the prosecution.” Heinish v. Tate, 1993 WL 460782, at *3 (6th Cir. 1993)

(citing Walker, 703 F.3d at 969–70.) See also Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120

L.Ed.2d 225 (1992) (the deference owed to the trier of fact limits the nature of constitutional sufficiency

review.)

Consistent with these principles, the Supreme Court has emphasized that habeas courts must review

sufficiency of the evidence claims with “double deference:”

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, 4, 181 L.Ed.2d

311 (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.

766, ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012). Under this standard,

“we cannot rely simply upon our own personal conceptions of what evidentiary showings would be

sufficient to convince us of the petitioner’s guilt,” nor can “[w]e . . . inquire whether any rational trier of

fact would conclude that petitioner . . . is guilty of the offenses with which he is charged.” Brown v. Konteh,

567 F.3d 191, 205 (6th Cir. 2009). Rather, a habeas court must confine its review to determining whether

the state court “was unreasonable in its conclusion that a rational trier of fact could find [petitioner] guilty

beyond a reasonable doubt based on the evidence introduced at trial.” Id. (emphasis in original) (citing

Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)).

Upon careful review of the trial transcript, the Court finds the state appellate court reasonably

determined Ray’s convictions were supported by sufficient evidence. In resolving Ray’s sufficiency of the

evidence claim, the state appellate court accurately summarized the evidence and correctly identified the

applicable law.3 As the state appellate court noted, the evidence presented placed Ray at the scene of the

crime at the moment the shooting occurred and demonstrated that Ray and his co-defendant were involved

in a scheme to carry out a hit on Morris. Ray messaged Johnson/Benson to confirm he still sought a hit on

Morris. (Trial Tr., pp. 963-64.) Messages from Ray’s co-defendant supported the theory that Ray and Sharpe

planned to carry out the hit and receive $10,000 from Johnson/Benson. (Trial Tr., p. 954.) Ten minutes after

the shooting, Ray messaged Johnson/Benson “Check and mate” and “Job done”. (Trial Tr., pp. 964-65.)

Ray admitted he was physically at the scene when the shooting occurred. Ray first denied being present,

and then later admitted he was at the scene during the shooting, but hiding inside his vehicle. (Doc. No. 10-

1, Ex. 15 at ¶ 37.) Ray had no explanation for how the vehicle had sustained multiple bullet holes, yet Ray

escaped unharmed. (Id. at ¶ 38.) Ray, despite being present at the scene of the shooting, never provided a

description of the actual shooter and never called the police. (Id.) Ray never explained the coincidence of

being at the scene after exchanging messages regarding a hit on one of the victims. (Id.) Ray implied that

someone else could have sent the messages, but Ray admitted the phone is his and he called his brother to

pick him up at a gas station immediately after the shooting. (Id. at ¶ 40.) There was no dispute the phone

was in Ray’s possession at least on the day of the shooting. (Id.) Cell tower pings place Ray at the scene.

(Id.)

3 A state court’s interpretation of state law is binding upon a federal habeas court. See Bradshaw, 546 U.S.

at 76; Bibbs, 2017 WL 4083558, at *15.

It is not for this Court to weigh evidence or determine credibility. See Jackson, 443 U.S. at 317-19;

Coleman, 566 U.S. at 651. While Ray interprets evidence in a light most favorable to him, that is not the

standard – the Court must view the evidence in a light most favorable to the prosecution. Jackson, 443 U.S.

at 319.

Under the “doubly deferential” standard, the Court cannot say the state court “was unreasonable in

its conclusion that a rational trier of fact could find [petitioner] guilty beyond a reasonable doubt based on

the evidence introduced at trial.” Brown v. Konteh, 567 F.3d at 205. Accordingly, the undersigned finds

Ray’s Second Ground fails on the merits. It is therefore recommended that Ground Two be DENIED.

2. Ground Three

In Ground Three, Ray argues the trial court erred by granting the State’s motion to reconsider joinder

after first granting Ray’s motion to severe. (Doc. No. 1 at p. 13.) As discussed previously, Ray filed a

motion asking the trial court to require a separate trial of Ray from his co-defendant. (Doc. No. 10-1, Ex.

3.) The trial court granted the motion. (Doc. No. 10-1, Ex. 4.) The State filed a motion to reconsider separate

trials to which Ray filed an opposition. (Doc. No. 10-1, Ex. 5, 6.) Ultimately, Ray was tried along side his

co-defendant.

Respondent argues Ray’s Third Ground is non-cognizable because the severance of defendants falls

within the state court’s discretion, which does not typically implicate a Constitutional question that is

reviewed in federal habeas corpus. (Doc. No. 10 at p. 25.) Respondent states the burden falls on Ray to

demonstrate that joinder is prejudicial. (Id.) Respondent attests both Ray and Sharpe denied they were

involved in the shooting, and did not create a scenario where one confessed and implicated a non-confessing

co-defendant. (Id.) Respondent argues Ray’s burden to demonstrate prejudice is further diminished because

the trial court instructed the jury that they had to separately assess the guilt or innocence of each defendant.

(Id. at p. 26.)

As Ray failed to file a Traverse, Respondent’s arguments are unopposed.

Ray raised his joinder argument to the state appellate court. (Doc. No. 10-1, Ex. 13.) The state

appellate court considered the claim on the merits and rejected it as follows:

{¶45} Appellant challenges the trial court’s actions in initially granting his

motion to sever the trials of he and his codefendant, but later granting the

state's motion and reconsidering that decision. Appellant argues that joinder

of the two trials was problematic, alleging that he and his codefendant

essentially blamed each other and presented “different and mutually

incompatible defenses.” Appellant also complains that he could not cross-

examine his codefendant Sharpe, who implicated Appellant in the murder,

because he elected not to testify.

{¶46} The state rebuts Appellant’s claim that law enforcement first learned

of Appellant's involvement in the crime after Sharpe implicated him. The

state contends that other witnesses had mentioned Appellant’s possible

involvement prior to Sharpe. Regardless, Appellant conceded that he was at

the scene of this crime at the time of the shooting and the argument that

Sharpe implicated him cannot possibly have prejudiced Appellant.

{¶47} Pursuant to Crim.R. 8(B):

Two or more defendants may be charged in the same indictment,

information or complaint if they are alleged to have participated in

the same act or transaction or in the same series of acts or

transactions constituting an offense or offenses, or in the same

course of criminal conduct. Such defendants may be charged in one

or more counts together or separately, and all of the defendants need

not be charged in each count.

{¶48} Under Crirn.R. 14, if it appears that a defendant is prejudiced by

joinder of a codefendant, the trial court may grant a motion for severance.

However, the burden is on the defendant to prove that joinder is prejudicial.

State v. Kozic, 7th Dist. Mahoning No. 11 MA 160, 2014-Ohio-3788, ¶ 69.

“The test is ‘whether a joint trial is so manifestly prejudicial that the trial

judge is required to exercise his or her discretion in only one way-by

severing the trial. * * * A defendant must show clear, manifest and undue

prejudice and violation of a substantive right resulting from failure to

sever.” State v. Schiebel, 55 Ohio St.3d 71, 89, 564 N.E.2d 54 (1990), citing

United States v. Castro, 887 F.2d 988, 998 (9th Cir.1989).

{¶49} An appellate court reviews a trial court’s denial of a motion for

severance for an abuse of discretion. State v. Lott, 51 Ohio St.3d 160, 163,

555 N.E.2d 293 (1990). Abuse of discretion involves more than an error or

judgment. It implies that the court’s determination was unreasonable,

arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151,157,404

N.E.2d 144 (1980).

{¶50} Appellant, then, holds the burden of “affirmatively showing that his

rights were prejudiced” and that the trial court abused its discretion in

failing to sever the trials. State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d

1288 (1981), syllabus. Appellant first asserts that his inability to cross-

examine Sharpe, who chose not to testify, prejudiced his case. However, as

this Court has already recognized, such an argument is speculative at best,

as Sharpe would have been free to assert his Fifth Amendment right even if

the trials were severed. See State v. Bright, 7th Dist. Mahoning No. 14 MA

0058, 2016-Ohio-6973, ¶ 18. There is no evidence that at a separate trial

where Sharpe would have been witness he would have implicated himself

and exculpated Appellant, as doing so would clearly have an adverse effect

on his own criminal trial, where he faced life in prison.

{¶51} Appellant next argues that he and Sharpe had incompatible defenses

and that they essentially pointed the finger at the other, thus forcing

Appellant to deal with “an extra prosecutor.” However, the record does not

support Appellant’s contention. For the most part, the defenses of both

Appellant and Sharpe were very similar. Both argued that Appellant drove

the Ford Focus to Pasadena Avenue without Sharpe and that Appellant

happened to arrive at the scene at the wrong time. Both contended they were

innocent of the alleged crimes and of planning the hit. The only “finger

pointing” occurred when Sharpe’s counsel argued that the familial

relationship between Sharpe and Appellant (they were allegedly cousins)

could have affected the DNA results implicating Sharpe. However, based

on a prior incarceration Sharpe’s DNA produced a CODIS alert that Sharpe

was likely a match to DNA found on a piece of evidence at the scene.

Evidence showed that Appellant had also been incarcerated and his DNA

would likely also have been in the CODIS system. Yet, there was no alert

to Appellant when the DNA on the evidence was tested. Thus, Sharpe’s

attempt to cast doubt on the DNA evidence linking him to the crime by

raising the familial connection with Appellant does not appear likely to have

impacted any aspect of Appellant’s defense.

{¶52} Lastly, Appellant cites to the jailhouse call where Sharpe gave his

mother Johnson/Benson’s phone number and asked her to collect $5,000

that Johnson/Benson owed to him. Although this evidence may have been

damaging to Appellant, significant evidence was presented involving texts

between Appellant and Johnson/Benson regarding the planned hit. The

evidence that Sharpe asked his mother to retrieve his half of the money for

completing the killing was a relatively minor piece of corroborating

evidence considering the amount of evidence offered against Appellant,

directly. The phone call evidence cannot, in isolation, be seen as prejudicial.

{¶53} Accordingly, the trial court did not err in joining the trials of the two

codefendants in this matter. Appellant’s third assignment of error is without

merit and is overruled.

Ray, 2023 WL 4485409, ¶¶ 45-53.

The Sixth Circuit explained the heavy burden that rests on a petitioner seeking habeas relief based

on a trial court’s failure to sever his trial from a codefendant’s:

A defendant is not entitled to severance merely because he might have had

a better chance of acquittal in a separate trial. See Zafiro v. United States,

506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Nor does he

have a right to a separate trial merely because defendants present

antagonistic defenses. See United States v. Day, 789 F.2d 1217, 1224 (6th

Cir.1986) (holding that absent some indication that the alleged antagonistic

defendants misled or confused the jury, the mere fact that co-defendants

blame each other does not compel severance). Courts should grant a

severance “only if there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at

539, 113 S.Ct. 933. Granting or denying severance is within the trial judge’s

discretion. See Glinsey v. Parker, 491 F.2d 337, 343 (6th Cir.1974). And, a

state trial court’s alleged abuse of discretion, without more, is not a

constitutional violation. See Sinistaj v. Burt, 66 F.3d 804, 805, 808 (6th

Cir.1995).

A petitioner seeking habeas relief on the basis of a trial court’s failure to

sever his trial from his co-defendant’s bears a very heavy burden. See

United States v. Horton, 847 F.2d 313, 316 (6th Cir.1988). As a general

rule, joint trials are favored. See United States v. Dempsey, 733 F.2d 392,

398 (6th Cir.1984). Jurors are presumed to follow the instructions of the

court and to give each defendant’s case separate consideration. See Francis

v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).

The mere potential for confusion, standing alone, will not outweigh

society’s interest in the speedy and efficient resolution of criminal trials.

See United States v. Moore, 917 F.2d 215, 222 (6th Cir.1990).

Stanford v. Parker, 266 F.3d 442, 458–59 (6th Cir. 2001). “A defendant must make a strong and compelling

showing of prejudice before reversal will be granted.” Horton, 847 F.2d at 317. “To prevail [on a motion

for a severance], the defendants must show that ‘antagonism between co-defendants will mislead or confuse

the jury.’” United States v. Kendricks, 623 F.2d 1165, 1168 (6th Cir.1980) (per curiam) (quoting United

States v. Vinson, 606 F.2d 149, 154 (6th Cir.1979). “The mere fact that each defendant ‘points the finger’

at another is insufficient; the defendant must show that the antagonism confused the jury.” Horton, 847 F.2d

at 317.

Here, Ray has not met his burden. Frist, granting or denying severance is within the discretion of the

trial court (Glinsey, 491 F.2d at 343), and a trial court’s alleged abuse of discretion is not a constitutional

violation. Sinistaj, 66 F.3d at 805, 808. Moreover, Ray and his co-defendant did not present antagonistic

defenses as they both denied being involved in the shooting. Even if they did “point the finger” at each

other, that is not enough. Horton, 847 F.2d at 317. Finally, the trial court instructed the jury that they were

required to decide the guilt or innocence of each defendant separately. (Doc. No. 10-6, Trial Tr. Vol. V at

1218.) Jurors are presumed to follow the instructions of the court and to give each defendant’s case separate

consideration. See Francis, 471 U.S. at n. 9. Ray has not presented evidence of juror confusion or that the

jury did not follow the trial court’s instructions. Ray’s Third Ground fails on the merits. It is therefore

recommended that Ground Three be DENIED.

V. CONCLUSION

For all the reasons set forth above, it is recommended that the Petition be DENIED.

Date: September 3, 2025 s/ Jonathan Greenberg

Jonathan D. Greenberg

United States Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with the Clerk of Courts

within fourteen (14) days after being served with a copy of this document. Failure to file objections

within the specified time may forfeit the right to appeal the District Court’s order. Berkshire v.

Beauvais, 928 F.3d 520, 530-31 (6th Cir. 2019).