Petition for Writ of Certiorari — Cynthia Davis, Warden, Petitioner v. David M. Smith
Supreme Court briefOct 10, 2024
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No. 24-_____
In the Supreme Court of the United States
______________________________
CYNTHIA DAVIS, WARDEN,
Petitioner,
v.
DAVID M. SMITH,
Respondent.
______________________________
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
______________________________
PETITION FOR WRIT OF CERTIORARI
______________________________
DAVE YOST
Ohio Attorney General
T. ELLIOT GAISER*
Ohio Solicitor General
*Counsel of Record
MICHAEL J. HENDERSHOT
Chief Deputy Solicitor General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
thomas.gaiser@ohioago.gov
Counsel for Petitioner
Cynthia Davis, Warden
i
QUESTION PRESENTED
The Due Process Clause requires exclusion of police-initiated eyewitness identification testimony in
exceedingly rare cases. Exclusion of such evidence,
the Court has said, is required only if the testimony
poses “a very substantial likelihood of irreparable misidentification.” Perry v. New Hampshire, 565 U.S.
228, 232 (2012) (citation omitted). This Court has
done so only once, 55 years ago. See Sexton v.
Beaudreaux, 585 U.S. 961, 966 (2018) (citing Foster v.
California, 394 U.S. 440 (1969)). In this AEDPA-governed case, a majority of a Sixth Circuit panel concluded that the Constitution barred testimony from a
victim of attempted murder identifying her attacker.
The panel held that Ohio courts unreasonably applied
this Court’s precedent, which mandates a totality-ofthe-circumstances look at reliability, even though: the
victim knew the attacker; had texted with the attacker 80-plus times in the day leading up to the attack; and was expecting the attacker to arrive at her
house when he did.
The Question Presented is: Did the Sixth Circuit
exceed its powers under AEDPA in concluding that
“every fairminded jurist would agree” that the Ohio
court violated the Constitution? Brown v. Davenport,
596 U.S. 118, 136 (2022).
ii
LIST OF PARTIES
The caption lists all parties to the proceeding.
iii
LIST OF DIRECTLY RELATED PROCEEDINGS
1. State v. Smith, No. 2016-P-0074, 2018 WL
6313398 (Ohio Ct. App. Dec. 03, 2018), jurisdiction declined, 157 Ohio St.3d 1564, (Ohio S. Ct.
Feb. 04, 2020).
2. Smith v. Eppinger, No. 5:20-CV-00438-JPC,
2023 WL 4410525 (N.D. Ohio Jan. 11, 2023) (report and recommendation), adopted by 2023
WL 4071835 (N.D. Ohio June 20, 2023).
3. Smith v. Davis, No. 23-3604, 2024 WL 3596872
(6th Cir. July 31, 2024).
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
LIST OF PARTIES……………………………………….ii
LIST OF DIRECTLY RELATED
PROCEEDINGS ................................................... iii
TABLE OF CONTENTS ............................................ iv
TABLE OF AUTHORITIES ...................................... vi
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 2
JURISDICTIONAL STATEMENT ............................ 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................... 3
STATEMENT .............................................................. 4
REASONS TO GRANT THE PETITION................. 10
I.
By policing police misconduct, the Sixth
Circuit defied this Court’s precedents that
require excluding eyewitness testimony
only when it presents an intolerable risk
of misidentification. ..................................... 10
II. The Sixth Circuit’s judgment commits
three AEDPA errors that this Court
routinely
reverses
in
summary
dispositions. ................................................. 16
A. The Sixth Circuit majority invoked
AEDPA deference in name, but not in
substance. ............................................... 16
v
B. The Sixth Circuit majority critiqued
the Ohio court’s opinion, not its
judgment. ............................................... 18
C. The Sixth Circuit majority relied on its
own precedent to grant habeas relief. ... 20
CONCLUSION.......................................................... 24
APPENDIX:
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circuit, July 31,
2024 ................................................................... 1a
Appendix B: Order, United States Court of
Appeals for the Sixth Circuit, September
4, 2024 ............................................................. 43a
vi
TABLE OF AUTHORITIES
Cases
Page(s)
Brown v. Davenport,
596 U.S. 118 (2022) ................................... 2, 19, 23
California v. Green,
399 U.S. 149 (1970) ............................................. 12
Coleman v. Thompson,
501 U.S. 722 (1991) ............................................. 18
Crawford v. Washington,
541 U.S. 36 (2004) ......................................... 12, 13
Davis v. United States,
564 U.S. 229 (2011) ............................................. 14
Desai v. Booker,
732 F.3d 628 (6th Cir. 2013) ............................... 13
Dowling v. United States,
493 U.S. 342 (1990) ............................................. 12
Felkner v. Jackson,
562 U.S. 594 (2011) ............................................. 14
Foster v. California,
394 U.S. 440 (1969) ................................. 19, 22, 23
Haliym v. Mitchell,
492 F.3d 680 (6th Cir. 2007) ............................... 22
Harrington v. Richter,
562 U.S. 86 (2011) ................................... 16, 17, 19
vii
Cases
Hudson v. Michigan,
547 U.S. 586 (2006) ......................................... 1, 14
Issa v. Bradshaw,
910 F.3d 872 (6th Cir. 2018) ............................... 24
Johnson v. City of Cheyenne,
99 F.4th 1206 (10th Cir. 2024) ............................ 22
Johnson v. Williams,
568 U.S. 289 (2013) ............................................. 18
Kansas v. Ventris,
556 U.S. 586 (2009) ............................................. 12
Kernan v. Cuero,
583 U.S. 1 (2017) ................................................. 20
Lisenba v. California,
314 U.S. 219 (1941) ............................................. 13
Lopez v. Smith,
574 U.S. 1 (2014) ................................................. 20
Manson v. Brathwaite,
432 U.S. 98 (1977) .. 1, 10, 11, 12, 14, 15, 16, 19, 21
Maryland v. Craig,
497 U.S. 836 (1990) ............................................. 12
Maryland v. Kulbicki,
577 U.S. 1 (2015) ................................................. 23
Michigan v. Tucker,
417 U. S. 433 (1974) ............................................ 14
viii
Cases
Mitts v. Bagley,
626 F.3d 366 (6th Cir. 2010) .............................. 24
Moss v. Hofbauer,
286 F.3d 851 (6th Cir. 2002) ............................... 22
Neil v. Biggers,
409 U.S. 188 (1972) ........................... 11, 17, 19, 21
Parker v. Matthews,
567 U.S. 37 (2012) ............................................... 21
Perry v. New Hampshire,
565 U.S. 228 (2012) ............2, 11, 12, 13, 15, 19, 23
Powell v. Alabama,
287 U.S. 45 (1932) ............................................... 13
Rapelje v. Blackston,
577 U.S. 1019 (2015) ........................................... 24
Rose v. Clark,
478 U.S. 570 (1986) ............................................. 13
Sexton v. Beaudreaux,
585 U.S. 961 (2018) ............................................. 16
Shinn v. Kayer,
592 U.S. 111 (2020) ............................................. 16
Shinn v. Ramirez,
596 U.S. 366 (2022) ......................................... 1, 17
Shoop v. Cassano,
142 S. Ct. 2051 (2022) ......................................... 20
ix
Cases
Smith v. Davis,
No. 23-3604, 2024 WL 3596872 (6th
Cir. July 31, 2024) ................................................. 2
Smith v. Eppinger,
No. 5:20-CV-00438-JPC, 2023 WL
4071835 (N.D. Ohio June 20, 2023) .................. 2, 9
Smith v. Eppinger,
No. 5:20-CV-00438-JPC, 2023 WL
4410525 (N.D. Ohio Jan. 11, 2023) ....................... 8
State v. Smith,
156 Ohio St. 3d 1452 (2019) .................................. 8
State v. Smith,
2018-Ohio-4799 (Ohio Ct. App.) .................. 7, 8, 19
United States v. Beverly,
369 F.3d 516 (6th Cir. 2004) ............................... 22
United States v. Crozier,
259 F.3d 503 (6th Cir. 2001) ............................... 22
United States v. Damsky,
740 F.2d 134 (2d Cir. 1984) ................................. 21
United States v. Morsley,
64 F.3d 907 (4th Cir. 1995) ................................. 21
United States v. Osorio,
757 F. App’x 167 (3d Cir. 2018)........................... 21
x
Cases
United States v. Robertson,
No. 17-CR-02949-MV, 2020 WL
85134 (D.N.M. Jan. 7, 2020) ............................... 21
United States v. Ross,
72 F.4th 40 (4th Cir. 2023) .................................. 21
United States v. Saint Louis,
889 F.3d 145 (4th Cir. 2018) ............................... 11
United States v. Scheffer,
523 U.S. 303 (1998) ............................................. 11
United States v. Velasquez,
No. 2:11-CR-77(12)-PPS-APR, 2013
WL 4048538 (N.D. Ind. Aug. 8, 2013) ................. 21
United States v. Wade,
388 U.S. 218 (1967) ............................................. 21
Vega v. Tekoh,
597 U.S. 134 (2022) ............................................. 14
White v. Woodall,
572 U.S. 415 (2014) ............................................. 21
Whorton v. Bockting,
549 U.S. 406 (2007) ............................................. 13
Wilkinson v. Dotson,
544 U.S. 74 (2005) ............................................... 18
xi
Cases
Wilson v. Sellers,
584 U.S. 122 (2018) ....................................... 18, 19
Statutes, Rules, and
Constitutional Provisions
28 U.S.C. §1254(1) ...................................................... 3
28 U.S.C. §2254(d)(1) .................................................. 3
Antiterrorism and Effective Death
Penalty Act ........... 1, 2, 9, 10, 14, 16, 17, 20, 23, 24
U.S. Const. amend. VI .............................................. 12
U.S. Const. amend. XIV .............................................. 3
Other Authorities
Nathan R. Sobel, et al., Eyewitness
Identification: Legal & Practical
Problems §6:6 n.6 (2d ed. 2024) .......................... 22
Lewis F. Powell, Jr., Jury Trial of
Crimes, 23 Wash. & Lee L. Rev. 1, 4
(1966) ................................................................... 13
1
INTRODUCTION
“Suppression of evidence … has always been our
last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). If that is true when the
Fourth Amendment’s constitutional protections impose a remedy for police misconduct, then exclusion
should be rarer still when the Constitution aims at the
trial process, not the police practice. See Manson v.
Brathwaite, 432 U.S. 98, 113 n.13 (1977). And it must
be even rarer still when a federal court orders suppression after filtering constitutional claims through
the lens of the Antiterrorism and Effective Death Penalty Act. See, e.g., Shinn v. Ramirez, 596 U.S. 366, 377
(2022). The Sixth Circuit’s impulse that an Ohio trial
court violated the Constitution because it did not suppress Quortney Tolliver’s identification of David
Smith as the person who tried to murder her drifts so
far from this Court’s teachings that the Court should
summarily reverse.
Quortney Tolliver knew David Smith. They had
previously taken an 80-or-so mile road trip from Ravenna to Cleveland, Ohio, just a few weeks before the
crime. On the day of the crime, Smith texted and
called Tolliver dozens of times because Smith wanted
Tolliver to get drugs for him. Those texts and calls
stopped moments before the attack that left Tolliver
hospitalized. Cell-site data placed Smith near Tolliver’s home at the time of the attack. DNA found in
Tolliver’s home could not exclude Smith as the source.
And one of Smith’s friends testified that she dropped
Smith off in Tolliver’s neighborhood, only to pick him
up about fifteen minutes later. In light of all this, any
fair-minded jurist would have a hard time concluding
2
that Tolliver’s identification presented “a very substantial likelihood of irreparable misidentification.”
Perry v. New Hampshire, 565 U.S. 228, 232 (2012) (citation omitted). The Sixth Circuit’s judgment that
“every fairminded jurist would agree” that the Ohio
court violated the Constitution, Brown v. Davenport,
596 U.S. 118, 136 (2022), defies logic. Not only did the
Sixth Circuit majority mishandle this Court’s eyewitness-identification precedents, but its judgment rests
on three classic AEDPA errors that this Court routinely corrects. This Court should grant the petition
and either summarily reverse, or in the alternative,
set the case for plenary merits review.
This Court may not review every circuit-court error in applying AEDPA; nor should it turn away from
every such error.
OPINIONS BELOW
The District Court denied Smith’s petition for habeas corpus on June 20, 2023. The opinion is available
online. Smith v. Eppinger, No. 5:20-CV-00438-JPC,
2023 WL 4071835 (N.D. Ohio June 20, 2023). The
Sixth Circuit reversed and directed the district court
to issue a writ. The opinion is not published, but is
available online. Smith v. Davis, No. 23-3604, 2024
WL 3596872 (6th Cir. July 31, 2024); Pet. App. 1a.
The Sixth Circuit denied Ohio’s request to stay the
mandate on September 4, 2024, without comment.
Pet. App. 43a. The Sixth’s Circuit’s mandate issued
September 12, 2024.
3
JURISDICTIONAL STATEMENT
This Court has jurisdiction over the Sixth Circuit’s
final judgment under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourteenth Amendment’s Section One reads,
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
U.S. Const., amend. XIV, §1, cl. 2–4.
The relevant statute governing the writ of habeas corpus reads,
(d) 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
28 U.S.C. §2254(d)(1).
4
STATEMENT
Quortney Tolliver was a drug dealer in Ravenna,
Ohio. Trial Tr. Vol. 2, R.10-3, PageID#986–87. One
day after a hearing in a downtown courthouse, she
called a friend for a ride home. Id. at PageID#993.
When the friend arrived, another person—David
Smith—was driving the car. Id. at PageID#993–94.
The trio then stopped by Tolliver’s house so that she
could drop off her court papers and road-tripped the
80 roundtrip miles to Cleveland to buy crack for Tolliver’s friend and David Smith. Id. at PageID#994.
A few weeks later Smith texted Tolliver in the
morning asking if she had the drugs he wanted. Id. at
PageID#997–98. The two texted back and forth into
the night about Smith getting drugs from Tolliver.
Those texts included haggling about the price, with
Tolliver interpreting Smith’s texts to demand “a deal”
on the drugs. Id. at PageID#1009. Near 11:00 p.m.
that night, Smith texted that he would see Tolliver
“tomorrow.” Id. at PageID#1007.
The text conversation resumed the next morning
around 9:00 a.m., with Tolliver telling Smith that she
needed a ride to Cleveland to get the drugs that Smith
desired. Id. at PageID#1010. As Tolliver described
that morning to the jury, she had a plan to travel back
to Cleveland to “get crack” for Smith.
Id. at
PageID#989–90, 992. In line with that plan, Smith
texted again at about 10:00 a.m. that he would head
over to “pick [Tolliver] up.” Id. at PageID#1011.
Smith texted Tolliver again at 10:40 to see if she was
“ready.” Id. at PageID#1012. After some further back
and forth about whether Tolliver was receiving all the
messages, Smith called Tolliver to say that he was “up
the street” and asked if he could come to her house
5
then. Id. at PageID#1013. Tolliver responded that he
could pick her up. Id.
A few minutes later, Smith “knocked on” Tolliver’s
screen door and she pushed it open.
Id. at
PageID#1014. Tolliver still needed to get her “shoes
on and [other] stuff” so she turned away from Smith.
Id. That is when she felt a blow to her head. She then
“turned back around” and “looked at him and … got
another hit” to the head. Id. Tolliver then “fell to [her]
knees” and tried to grab her Taser, but “blacked out”
instead. Id.
At some point, Tolliver briefly regained consciousness and stumbled out of her home screaming, which
drew the attention of neighbors. See, e.g., Trial Tr.
Vol. 8, R.10-9, Page ID#2462–64, 2466. Tolliver eventually woke up in a hospital. Trial Tr. Vol. 2, R.10-3,
PageID#1014.
The investigation started immediately. Because
Tolliver was still in a coma, the police tracked down
Tolliver’s cell-phone number from a person who had
bought drugs from Tolliver. Trial Tr. Vol. 7, R.10-8,
PageID#2202. A subpoena to the cell-phone company
revealed that one number had texted or called Tolliver
85 times in the 24 hours before the attack. Id. at
PageID#2209, 2211–12. That deluge of contacts
ended right before the attack. Id. at PageID#2210.
The police eventually connected the phone number to
David Smith. Id. at PageID#2214, 2218–20.
Other facets of the investigation pointed to Smith.
Cell-location data for Smith’s number on the day of
the attack showed him leaving the area of the state
where he lived and traveling to the place where Tolliver lived. Id. at PageID#2223, 2230–33. That data
showed the cell phone associated with Smith
6
communicating with a cell-phone tower less than
1,800 feet from Tolliver’s home in the timeframe of the
attack. Id. at PageID#2233–34.
DNA evidence also linked Smith to the scene. Although the quality of the samples limited analysts’
ability to compare the full number of loci, two samples
from Tolliver’s bathroom sink matched Smith’s DNA
profile. A sample from the sink basin matched
Smith’s with a 1 in 3,914 chance that the sample was
not Smith. Trial Tr. Vol. 6, R.10-7, PageID#1844. And
a sample from the left faucet handle matched Smith
with a 1 in 155 chance of not being Smith’s. Id. at
PageID#1846–47.
Another witness further tied Smith to the place
and time of the attack. The jury heard testimony from
David Smith’s friend, Lisa Frame, that connected him
to Tolliver’s home around the relevant time. See id. at
Page#1996, 1998, 2002. Frame testified that the “one
time” Smith rode in her car involved a trip when
Frame drove Smith to Tolliver’s neighborhood. Id. at
PageID#1998, 2002. On that trip, Frame drove Smith
to Tolliver’s neighborhood, dropped him off, circled the
neighborhood for 15 to 17 minutes, and then picked
him up again. Id. at PageID#2003–04. Smith had told
Frame that the reason for the trip was for Smith to
sell a gun to a friend so that Smith could use the
money to buy drugs for Frame. Id. at PageID#2000–
01. But when Smith got back in the car, he still had
the gun. Id. at PageID#2005.
The investigation did eventually include interviewing Tolliver. The police approached her at the rehabilitation center where she was still recovering almost two months after the attack. The officer who
conducted that interview explained that interviewees
7
like Tolliver, who are out on bond, are not always
“very forthcoming with law enforcement.” Trial Tr.
Vol. 7, R.10-8, PageID#2245–47. That proved true for
this interview, as Tolliver initially hedged about
knowing Smith when shown his photo.
Id. at
PageID#2248. The officer believed she was lying to
avoid implicating herself in criminal activity and to
shield her mother from learning about her drug-selling behavior. Id.; Mot. to Suppress Tr., R. 10-1,
PageID#803–04. Bearing out the officer’s suspicions,
in a later interview, Tolliver indicated that she was
100 percent sure Smith was her attacker. Trial Tr.
Vol. 7, R.10-8, PageID#2254.
After hearing all of this and other evidence, a jury
convicted Smith of attempted murder and other
counts. An Ohio court sentenced him to 22 years in
prison. State v. Smith, 2018-Ohio-4799, ¶¶3–4 (Ohio
Ct. App.). On direct appeal, as relevant here, Smith
challenged the trial court’s decision not to suppress
Tolliver’s testimony identifying him as her attacker.
Id. at ¶8.
The Ohio appeals court identified the possible dueprocess problem with the officer showing Tolliver
Smith’s picture and telling her that he believed Smith
was her attacker. Id. at ¶36 (citing Stovall v. Denno,
388 U.S. 293, 302 (1967)). The court acknowledged
that “the practice of showing a person a single suspect
for purposes of identification, not part of a lineup, is
widely condemned.” Id. (citing Foster v. California,
394 U.S. 440, 443 (1969)). The appeals court concluded that the officer’s “identification procedure …
was impermissibly suggestive and unnecessary.” Id.
at ¶37. Once again citing this Court’s precedent, the
Ohio court concluded that it “must assess whether the
identification was reliable under the totality of the
8
circumstances.” Id. (citing Neil v. Biggers, 409 U.S.
188, 199 (1972)).
The Ohio court’s analysis recounted that Tolliver
“had ample opportunity to view Smith at the time of
her attack” as she “recalled Smith coming to her door,
letting him in, and him striking her with a hammer.”
Id. at ¶48. The court also considered both that Tolliver initially said that “she was uncertain if she was
recalling a dream or the actual date of her attack,” and
that at a later interview and in court “she was 100
percent certain … that Smith was the person who attacked her.” Id. Finally, the court reasoned that a
“strong showing of reliability can arise from the fact
that a victim knew the perpetrator of a crime before
the crime was committed.” Id. at ¶47 (citation omitted). Overall, the Ohio court concluded, the “totality
of the circumstances surrounding the identification”
showed no violation of Smith’s “right to due process”
and “[s]uppression was not required.” Id. at ¶¶48–49.
The Ohio Supreme Court denied review over a single
dissenting vote. See State v. Smith, 156 Ohio St. 3d
1452 (2019).
Smith then petitioned for a writ of habeas corpus
in federal court. A magistrate recommended finding
that the Ohio court’s “decision was not an unreasonable application of Supreme Court precedent” as it had
pointed to “several … factors that favored a finding
that the eyewitness identification was reliable and
considered another obviously relevant factor,” Tolliver
and Smith’s acquaintance, “when it determined the totality of the circumstances suggested her identification was reliable.” Smith v. Eppinger, No. 5:20-CV00438-JPC, 2023 WL 4410525, at *19 (N.D. Ohio Jan.
11, 2023). The district court accepted that recommendation and granted a certificate of appealability.
9
Smith v. Eppinger, No. 5:20-CV-00438, 2023 WL
4071835, at *1 (N.D. Ohio June 20, 2023).
On Smith’s appeal, the Sixth Circuit reversed over
Judge Thapar’s dissent. As the majority saw it, the
Ohio court failed “to engage in the balancing test mandated by clearly established Supreme Court precedent.” Pet. App. 31a. The majority faulted the Ohio
court for not balancing what it called an “extremely
weak showing of reliability” against “the immensely
suggestive law enforcement procedure.” Pet. App.
28a. In the majority’s view, Tolliver’s identification
“served as the key piece of the government’s evidence,”
so failing to suppress it meant that “any fair-minded
jurist would conclude that the scale crashes to the
side” of granting habeas relief. Pet. App. 31a.
Judge Thapar dissented, noting three serious problems with the majority’s AEDPA approach. The dissent first described the majority opinion as a “de novo
analysis” of the factors that merely asserted “that no
fair-minded jurist could disagree with its conclusion.”
Pet. App. 38a. It also noted that the majority could
not “find a single Supreme Court case holding that a
court can’t consider the victim’s previous interaction
with her attacker in its reliability analysis.” Pet. App.
40a. Finally, it flagged that the majority misapplied
AEDPA “by targeting the state court’s reasoning rather than its bottom-line decision.” Pet. App. 39a.
The warden moved to stay the mandate, but the
Sixth Circuit denied that request without comment.
Pet. App. 43a.
10
REASONS TO GRANT THE PETITION
Two headlines point to summary reversal. First,
the Sixth Circuit majority granted habeas relief that
will exclude eyewitness testimony in a scenario unmentioned in this Court’s cases on the topic. Second,
the Sixth Circuit majority committed three classic
AEDPA errors that this Court routinely corrects
through summary reversal. If the Court does not summarily reverse, it should instead grant plenary review.
I.
By policing police misconduct, the Sixth
Circuit defied this Court’s precedents
that require excluding eyewitness testimony only when it presents an intolerable risk of misidentification.
The Sixth Circuit majority’s hair-trigger exclusion—executed in an AEDPA case—cannot be justified under this Court’s holdings. More than 40 years
ago, this Court rejected a per-se rule of exclusion
whenever police misconduct tainted eyewitness-identification testimony. Manson v. Brathwaite, 432 U.S.
98, 114 (1977). Rather than per-se exclusion, the
Court adopted a totality approach that allows such
testimony if, “despite the suggestive aspect, the outof-court identification possesses certain features of reliability.” Id. at 110. The testimony’s “reliability is
the linchpin in determining” its “admissibility.” Id. at
114. The test can also be stated this way: absent “‘a
very substantial likelihood of irreparable misidentification,’” eyewitness identification “evidence is for the
jury to weigh.” Id. at 116 (citation omitted). Importantly, the Court did not “establish a strict exclusionary rule or new standard of due process.” Id. at
113. Instead, exclusion is only appropriate when “the
11
likelihood of misidentification … violates a defendant’s right to due process.” Neil v. Biggers, 409 U.S.
188, 198 (1972).
The Court reaffirmed this test in 2012. “An identification infected by improper police influence,” the
Court reiterated, “is not automatically excluded.”
Perry v. New Hampshire, 565 U.S. 228, 232 (2012). Indeed, “the exclusion of such evidence is the exception
to the rule that favors the admissibility of eyewitness
identification for the jury’s consideration.” United
States v. Saint Louis, 889 F.3d 145, 153 (4th Cir. 2018)
(citation omitted). And with exclusion as the exception, “even highly dubious eyewitness testimony”
should “be[] admitted and tested in the crucible of
cross-examination.” United States v. Scheffer, 523
U.S. 303, 334–35 (1998) (Stevens, J., dissenting). After all, “evidence with some element of untrustworthiness is customary grist for the jury mill.” Manson, 432
U.S. at 116.
Both when announced and today, the rule favoring
admissibility and leaving exclusion as the exception
rests on at least four considerations. First, a rule of
per-se exclusion “denies the trier reliable evidence”
and “may result, on occasion, in the guilty going free.”
Id. at 112. Second, precisely “because of its rigidity,”
a rule of per-se exclusion “may make error by the trial
judge more likely than the totality approach.” Id.
Third, because “a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest,” exclusion is not a favored remedy. Id. at 113 n.13. Fourth, absent “the
substantial likelihood of irreparable misidentification,” courts should be “content to rely upon the good
sense and judgment of American juries.” Id. at 116.
In short, in those “cases in which the identification is
12
reliable despite an unnecessarily suggestive identification procedure,” exclusion would be “a Draconian
sanction.” Id. at 113. Put another way, the touchstone is “fairness as required by the Due Process
Clause of the Fourteenth Amendment,” not a “strict
exclusionary rule.” Id. at 113.
The Court’s approach to police-involved eyewitness-identification testimony matches the Constitution’s approach to evidence more broadly. The Constitution generally addresses evidentiary reliability
through “procedural rather than … substantive guarantee[s].” See Crawford v. Washington, 541 U.S. 36,
61 (2004). In several contexts, the Court has rejected
claims that the Constitution wards off supposedly “inherently unreliable” evidence by excluding it instead
of relying on the Constitution’s robust procedures to
protect criminal trials from unreliable evidence. See,
e.g., Perry, 565 U.S. at 236, 245 (eyewitness testimony
unrelated to police interrogation); Kansas v. Ventris,
556 U.S. 586, 594 n.* (2009) (statement to jailhouse
informant); Dowling v. United States, 493 U.S. 342,
354 (1990) (evidence related to acquitted conduct).
These cases showcase the Court’s “unwillingness
to enlarge the domain of due process,” Perry, 565 U.S.
at 246, and corresponding willingness to rely on the
Constitution’s many procedural measures that assure
reliable criminal trial process instead. Those include,
among others, the Confrontation Clause, which “ensure[s] the reliability of the evidence against a criminal defendant,” Maryland v. Craig, 497 U.S. 836, 845
(1990), by tapping into cross-examination, “the ‘greatest legal engine ever invented for the discovery of
truth,’” California v. Green, 399 U.S. 149, 158 (1970)
(citation omitted). They also include the right to counsel, without which, “a criminal trial cannot reliably
13
serve its function as a vehicle for determination of
guilt or innocence.” Rose v. Clark, 478 U.S. 570, 577–
78 (1986); Powell v. Alabama, 287 U.S. 45, 58–59
(1932). And they include the right to a jury, which
“furnishes some assurance of a reliable decision.”
Lewis F. Powell, Jr., Jury Trial of Crimes, 23 Wash. &
Lee L. Rev. 1, 4 (1966) (quotation marks omitted). In
short, the Due Process Clause plays “a limited … role”
in policing evidence admission “in view of the other
lines of defense against unreliable evidence.” Desai v.
Booker, 732 F.3d 628, 630–31 (6th Cir. 2013) (Sutton,
J.). The targeted “aim of the requirement of due process” has long been viewed “not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false.”
Lisenba v. California, 314 U.S. 219, 236 (1941).
If anything, the Court’s increased focus on the original meaning of the Constitution’s criminal-procedure
guarantees has moved away from standards that empower judges to decide if evidence is reliable. Crawford, of course, overtured previous precedent that let
judges deny “the admission of unreliable out-of-court
nontestimonial statements.” Whorton v. Bockting,
549 U.S. 406, 420 (2007). Crawford’s method casts
doubt on the Manson-Biggers approach, where judges
police evidentiary reliability, because such policing replaces “the constitutionally prescribed method of assessing reliability with a wholly foreign one.” Crawford, 541 U.S. at 62; see Perry, 565 U.S. at 249
(Thomas, J., concurring).
All this signals that exclusion to remedy possible
evidentiary unreliability must be exceedingly rare.
Compare the Fourth Amendment’s well-known exclusion domain. In that space, exclusion protects a constitutional value embedded in the Fourth
14
Amendment. Even in the Fourth Amendment context, “[r]eal deterrent value is a necessary condition
for exclusion, but it is not … sufficient” because
“[e]xclusion exacts a heavy toll on both the judicial
system and society at large.” Davis v. United States,
564 U.S. 229, 237 (2011). Police-involved eyewitness
testimony, by comparison, “does not in itself intrude
upon a constitutionally protected interest.” Manson,
432 U.S. at 113 n.13. That is equally true in other
realms where this Court has crafted constitutionally
based prophylactic rules. See Vega v. Tekoh, 597 U.S.
134, 149–50 (2022); see also Michigan v. Tucker, 417
U. S. 433, 450–452 & n.26 (1974) (fruits of un-Mirandized statement can be admitted). And if exclusion is
rare when it directly protects a constitutional interest,
then it must be rarer still when it only indirectly
serves one.
All the above casts doubt that exclusion would be
required on direct review. So reviewed under AEDPA,
the Sixth Circuit majority’s holding deserves a red
flag. Cf. Felkner v. Jackson, 562 U.S. 594, 598 (2011).
The Sixth Circuit majority turned to exclusion as “a
first impulse,” not a “last resort.” Hudson, 547 U.S. at
591. The Sixth Circuit majority’s impulse stemmed
from its focus on police misconduct—that is, on the
classic basis for exclusion—despite this Court’s direction that the rule enforces due process, not perfect police practice. See Manson, 432 U.S. at 133 & n.13. The
majority, for example, impugned the police conduct as
an “aberrant, highly corruptive procedure,” Pet. App.
15a, that was “immensely suggestive,” Pet. App. 28a.
The misconduct, the majority opined, should bear
“enormous weight” on the scales when weighed
against indicia of reliability. Pet. App. 31a.
15
Yet, when the majority turned to the other side of
the balance, it left an elbow on the side of the scale for
police conduct but failed to weigh numerous signs that
Tolliver’s identification was spot on. After reading the
Sixth Circuit majority opinion, a reader might think
this Court imposes an exclusionary rule to curb police
misconduct and that Tolliver’s identification was the
only evidence in the case. Both would be wrong.
First, this Court has consistently pegged admission of police-involved eyewitness testimony to its ultimate reliability, despite police misconduct. Manson,
432 U.S. at 113–14; Perry, 565 U.S. at 232. The Due
process inquiry weights the “effect” of the police conduct on reliability against countervailing evidence
showing reliability; it does not weigh misconduct itself
against reliability. Manson, 432 U.S. at 114 (emphasis added); Perry, 565 U.S. at 239. The Sixth Circuit
majority itched to punish police misconduct instead of
following this Court’s instructions to test the identification for ultimate reliability.
Second, the evidence here is suffused with reliability. The majority lobs plenty of adjectives against police misconduct, but devotes almost no words to describing the text and phone messages, the cell-location
data, and the DNA, all of which tied Smith to the
crime. Most arrestingly, the majority makes no mention that Smith called Tolliver minutes before the attack to announce that he was down the road from her
house and asked if she was ready for him to pick her
up for their planned trip to Cleveland.
*
The evidence here belies any description of the police conduct as creating “‘a very substantial likelihood
of irreparable misidentification.’” Manson, 432 U.S.
16
at 116 (citation omitted). Instead, “under all the circumstances,” the “evidence [was] for the jury to
weigh.” Id. That would be true enough under direct
review. But refracted through AEDPA’s prism, no jurist faithfully applying this Court’s cases and that
statute should have held otherwise.
II.
The Sixth Circuit’s judgment commits
three AEDPA errors that this Court routinely reverses in summary dispositions.
The dissent is right thrice over. Its critique of the
majority identifies three ways that the judgment
breaks this Court’s commandments for applying
AEDPA to state-court merits judgments.
A.
The Sixth Circuit majority invoked
AEDPA deference in name, but not
in substance.
First, while the majority nominally invoked
AEDPA, it conducted de novo review in substance.
Pet. App. 23a. That, of course, is an approach this
Court has repeatedly corrected. See, e.g., Shinn v.
Kayer, 592 U.S. 111, 119 (2020); Sexton v.
Beaudreaux, 585 U.S. 961, 968 (2018); Harrington v.
Richter, 562 U.S. 86, 101–02 (2011). Indeed, Sexton
corrected this methodological error as it relates to suppressing identification evidence. Although the claim
there was nested within an ineffective-assistance
claim, the core question was whether the Ninth Circuit properly applied AEDPA in the context of suppressing the identification. This Court summarily reversed, noting that although the indicia of reliability
were mixed, the “totality of the circumstances” could
be viewed as favoring the State. 585 U.S. at 967.
17
The Sixth Circuit majority did invoke the “fairminded jurist” standard, but it did so only after what
reads like a de novo review of the factors for testing an
identification’s reliability. The majority’s analysis
reads as if the fairminded-jurist inquiry is “a test of
its confidence in the result it would reach under de
novo review.” Richter, 562 U.S. at 102. That is, the
majority seems to have “concluded [that] the state
court must have been unreasonable in rejecting” the
same conclusion the majority reached. Id. For example, in discussing Tolliver’s opportunity to view her attacker (see Biggers, 409 U.S. at 199), the majority
never mentions that Tolliver knew Smith beforehand,
had talked to him on the phone minutes before, and
knew he was on his way to her house. Yet the majority
still concluded that this factor “clearly favors suppression.” Pet. App. 17a.
The Sixth Circuit majority’s AEDPA-last approach
leaves the reader wondering “how [its] … analysis
would have been any different without AEDPA.”
Richter, 562 U.S. at 101. That leaves Ohio to once
again ask this Court to enforce the clear limitations
that Congress and the Court have placed on federal
habeas review in order “to ensure that state [criminal]
proceedings are the central process, not just a preliminary step for a later federal habeas proceeding[.]” Id.
at 103.
The Sixth Circuit’s drive-by AEDPA analysis inflicts a harm on “the State and its citizens.” Shinn v.
Ramirez, 596 U.S. 366, 390 (2022). The Court should
reverse.
18
B.
The Sixth Circuit majority critiqued the Ohio court’s opinion, not
its judgment.
Second, the Sixth Circuit majority faulted the state
court’s opinion writing rather than its holding. The
majority opinion reads like a professor grading 1L exams. That grading fails this Court’s instructions to
lower courts conducting habeas review. Those instructions include the reminder that “federal courts
have no authority to impose mandatory opinion-writing standards on state courts.” Johnson v. Williams,
568 U.S. 289, 300 (2013); see Coleman v. Thompson,
501 U.S. 722, 739 (1991). Instead, a writ of habeas
corpus is directed at the state-court judgment. A court
issuing the writ simply gives the state court an opportunity to “replace an invalid judgment with a valid
one.” See Wilkinson v. Dotson, 544 U.S. 74, 87 (2005)
(Scalia, J., concurring).
The majority flunked the Ohio court for “halfheartedly devoting a couple of sentences” to the reliability
analysis; its “glaring omission” of a factor the majority
thought relevant; its “cursory” reliability discussion;
and its “fail[ure] to balance” reliability and suggestibility as the majority would have. Pet. App. 23a, 26a,
28a. None of those criticisms address the Ohio court’s
judgment. Perhaps the biggest tell that the Sixth Circuit majority trained its fire on the Ohio court’s reasoning, not its judgment, is that it framed the problem
as the Ohio appellate court “fail[ing] to salvage the
trial court’s erroneous reasoning.” Pet. App. 29a. To
the Sixth Circuit majority, the Ohio trial court’s “erroneous original decision” committed original sin that
the Ohio appeals court failed to absolve. Pet. App.
29a. The Sixth Circuit’s approach contradicts this
Court’s instruction that federal habeas courts look to
19
the “last state court to decide a prisoner’s federal
claim.” Wilson v. Sellers, 584 U.S. 122, 125 (2018).
Whatever criticism the majority had of the Ohio appellate court, that court decided Smith’s federal
claims in “a reasoned opinion,” id., so turning to the
trial opinion was entirely out of bounds.
The Sixth Circuit majority’s grading also unfairly
evaluated the Ohio court opinion even on its own
terms. The Ohio court cited all this Court’s key cases
in the area, Foster, Biggers, Manson, and Perry. 2018Ohio-4799 ¶¶10, 36, 37, 42. The Ohio court agreed
that the police engaged in “improper” conduct when
interacting with Tolliver. Id. at ¶¶37, 49. The Ohio
court enumerated the so-called Biggers factors for
evaluating reliability. Id. at ¶40. The Ohio court explained why the Biggers factors “are better suited” for
stranger identifications, which this was not. Id. at
¶47. Finally, the Ohio court distinguished the one
time this Court ruled that an identification must be
excluded. Id. (discussing Foster, 394 U.S. 440, as a
stranger case). All in all, the Ohio court should have
graded out well. Even looking to the opinion instead
of the judgment, it is impossible to say that the Ohio
court went astray so that “every fairminded jurist
would agree” it deserved an F. Davenport, 596 U.S. at
136.
Finally, the Sixth Circuit majority’s “analysis overlook[ed] arguments that would otherwise justify the
state courts result,” Richter, 562 U.S. at 102. Pet.
App. 23a. Most salient here, the majority overlooked
the landslide of texts and calls between Tolliver and
Smith that should have decisively weighted the reliability side of the scale. Recall that one of those calls
from Smith to Tolliver took place minutes before the
attack. In that call, Smith announced that he was “up
20
the street” from Tolliver’s house and then asked if he
could come to her house to pick her up. Trial Tr. Vol.
2, R.10-3, PageID#1013.
“Ohio and its citizens deserve better,” Shoop v.
Cassano, 142 S. Ct. 2051, 2057 (2022) (Thomas, J., dissenting), than the Sixth Circuit’s AEDPA defiance on
this second axis. This Court should reverse.
C.
The Sixth Circuit majority relied on
its own precedent to grant habeas
relief.
Third, the Sixth Circuit majority deviated from
AEDPA when it turned to its own precedent to support
its grant of habeas relief. The majority’s approach directly contradicts this Court’s repeated reversals of
circuit courts following the same path, including the
Sixth Circuit. This Court has “emphasized, time and
again, that the Antiterrorism and Effective Death
Penalty Act … prohibits the federal courts of appeals
from relying on their own precedent to conclude that
a particular constitutional principle is ‘clearly established.’” Lopez v. Smith, 574 U.S. 1, 2 (2014) (citation
omitted); see Kernan v. Cuero, 583 U.S. 1, 8 (2017).
The Sixth Circuit majority relied on its own precedent to justify granting habeas relief. The majority
first noted that “[e]very case in this Circuit” permitting acquaintance eyewitness testimony “involved a
significantly closer relationship” than that between
Tolliver and Smith. Pet. App. 24a. As the majority
saw it, habeas relief was required because Sixth Circuit “precedent [had] never deemed such a tenuous relationship close enough to confer reliability.” Id. The
Sixth Circuit majority thus “erred by consulting its
own precedents, rather than those of this Court, in assessing the reasonableness of the” Ohio court’s
21
decision. Parker v. Matthews, 567 U.S. 37, 48 (2012);
see White v. Woodall, 572 U.S. 415, 420 n.2 (2014).
If anything, this Court’s cases about eyewitness
identification point opposite the Sixth Circuit majority’s conclusion. For example, the key case rejecting a
“per se” exclusionary rule described the reliability issue as arising when “the witness must testify about
an encounter with a total stranger.” Manson, 432 U.S.
at 109, 112 (emphasis added). An earlier case likewise
set the stage by observing that “identification of
strangers is proverbially untrustworthy.” United
States v. Wade, 388 U.S. 218, 228 (1967) (emphasis
added). These statements invoke a fair debate on
whether the usual analysis for eyewitness testimony—the Biggers factors—about a stranger even applies when the victim previously knew the identified
perpetrator. The Fourth Circuit, for example, thinks
that these “‘Biggers factors’ are best suited to evaluate
the reliability of an identification made by an eyewitness who had one discrete run-in with the perpetrator.” United States v. Ross, 72 F.4th 40, 49 n.8 (4th
Cir. 2023).
Many cases track the Fourth Circuit’s observation
and conclude that when an acquaintance offers an
eyewitness identification, any due-process concerns
about admitting the evidence are easily met. See, e.g.,
United States v. Damsky, 740 F.2d 134, 140 (2d Cir.
1984); United States v. Osorio, 757 F. App’x 167, 170
(3d Cir. 2018); United States v. Velasquez, No. 2:11CR-77(12)-PPS-APR, 2013 WL 4048538, at *8 (N.D.
Ind. Aug. 8, 2013); United States v. Robertson, No. 17CR-02949-MV, 2020 WL 85134, at *10 (D.N.M. Jan. 7,
2020); cf. United States v. Morsley, 64 F.3d 907, 917
(4th Cir. 1995); see also Johnson v. City of Cheyenne,
99 F.4th 1206, 1221 (10th Cir. 2024) (collecting
22
acquaintance cases); Nathan R. Sobel, et al., Eyewitness Identification: Legal & Practical Problems §6:6
n.6 (2d ed. 2024) (same). The Sixth Circuit majority’s
holding is hard to reconcile with these cases, even
though this Court’s “totality of the circumstances” test
means a sharp circuit split will almost certainly never
arise.
Strikingly, the Sixth Circuit’s own cases decided
before the decision below aligned with the many cases
holding that any due-process concern is easily satisfied when the witness knew the perpetrator. In a habeas case, for example, the Sixth Circuit reasoned that
“any prior acquaintance with another person substantially increases the likelihood of an accurate identification.” Haliym v. Mitchell, 492 F.3d 680, 706 (6th
Cir. 2007). Before that, in a direct-review case, the
Sixth Circuit explained that “it is material whether
the witness was familiar with the defendant, because
the more familiar the person, the more reliable the
identification.” United States v. Crozier, 259 F.3d 503,
511 n.2 (6th Cir. 2001); see also United States v. Beverly, 369 F.3d 516, 539 (6th Cir. 2004); Moss v. Hofbauer, 286 F.3d 851, 862 (6th Cir. 2002). Despite this
wealth of authority highlighting the salience of Tolliver knowing Smith before the attack, the Sixth Circuit majority countermanded the Ohio court’s judgment.
To be sure, the Sixth Circuit majority pointed to
the one case in which this Court held that the Due
Process Clause required excluding the eyewitness
identification. Pet. App. 30a; see Foster, 394 U.S. 440.
Wielding Foster, the majority harpooned the police
conduct in this case as “even worse than the identification procedure” there. Pet. App. 30a. But that disregards this Court’s teaching that the Due Process
23
Clause does not mandate exclusion “if the indicia of
reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances.” Perry, 565 U.S. at 232. The Sixth Circuit
majority let the police’s conduct drive the analysis
without weighing the other factors favoring reliability. By all indications, Foster involved a stranger—
the night manager of a Western Union office—who observed the defendant during the robbery. 394 U.S. at
441. That hardly sets it up as a guide to this case,
which includes several reasons to credit Tolliver’s
identification that were absent in Foster. Recall that
Tolliver knew Smith from a previous roundtrip car
ride to Cleveland; Tolliver had exchanged dozens of
texts and phone calls with Smith in the 24 hours before the attempted murder; Smith had called Tolliver
minutes before to tell her that he was on the way to
her house; and the barrage of communication between
Smith and Tolliver ceased moments before the attack.
See above 4–5. The Sixth Circuit majority thought
this case presented a “clear application of Foster.” Pet.
App. 30a. But, as dozens of cases have observed, when
a witness knows the offender, the reliability calculus
occupies a different analytical landscape. Foster is no
guide in that terrain. And no other case from this
Court puts the Ohio court’s analysis beyond “fairminded” debate. Davenport, 596 U.S. at 136.
Applying this Court’s precedent “in name only” is
grounds for summary reversal. See Maryland v.
Kulbicki, 577 U.S. 1, 2 (2015). This third AEDPA error is yet another reason to reverse.
*
*
*
The Constitution leaves the question of evidentiary reliability largely to process. Only once has this
24
Court held that the Constitution required suppressing
the kind of evidence involved here regardless of process. The Sixth Circuit’s holding breaks new ground
on the topic, but AEDPA is Congress’s judgment that
federal courts may not enlarge the Constitution’s
guarantees when reviewing state criminal convictions.
No Circuit can spare the judicial resources to correct every panel error, even every AEDPA panel error.
The Sixth Circuit has said as much. See, e.g., Issa v.
Bradshaw, 910 F.3d 872, 877–78 (6th Cir. 2018) (Sutton, J., concurring in denial of en banc rehearing);
Mitts v. Bagley, 626 F.3d 366, 370–71 (6th Cir. 2010)
(Sutton, J., concurring in denial of en banc rehearing),
panel op. reversed by, Bobby v. Mitts, 563 U.S. 395, 400
(2011). The Sixth’s Circuit’s renewed “taste for disregarding AEDPA,” Rapelje v. Blackston, 577 U.S. 1019,
1021 (2015) (Scalia, J., dissenting from denial of certiorari), marks this as a case that calls out for summary
reversal.
CONCLUSION
The Court should grant the petition for certiorari
and summarily reverse, or in the alternative, set the
case for plenary review.
25
Respectfully submitted,
DAVE YOST
Ohio Attorney General
T. ELLIOT GAISER*
Ohio Solicitor General
*Counsel of Record
MICHAEL J. HENDERSHOT
Chief Deputy Solicitor General
30 E. Broad St., 17th Floor
Columbus, Ohio 43215
614-466-8980
thomas.gaiser@ohioago.gov
Counsel for Petitioner
Cynthia Davis, Warden
OCTOBER 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.