IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KENNETH GRISSON, 

Petitioner, 

v. Case No. 2:11-cv-194

 JUDGE JAMES L. GRAHAM

WARDEN, ROSS CORRECTIONAL Magistrate Judge Kemp

INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition,

respondent’s return of writ, and the exhibits attached to the return. Petitioner has not

filed a traverse. For the reasons that follow, the Magistrate Judge RECOMMENDS that

petitioner’s claims be DISMISSED.

 I. PROCEDURAL HISTORY

On June 18, 2007, a Franklin County, Ohio grand jury indicted petitioner on six

felony counts arising out of an alleged assault on Tamika Brightwell, Antonette

Brightwell, Robert Taylor, and Alfreda Hyppolite, which occurred on March 20, 2007.

The indictment contained four counts of felonious assault with firearm specifications

(one for each of the four alleged victims), one count of improperly discharging a

firearm, with the same two specifications, and one count of improper handling of a

firearm in a motor vehicle, also with a firearm specification Return of Writ, Exhibit One.

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 1 of 23 PAGEID #: <pageID>
2

Petitioner pleaded not guilty and the case went to trial on August 20, 2008. On

August 26, 2008, the jury convicted him of all six counts and all of the specifications. On

October 1, 2008, the trial court issued a judgment entry imposing sentence. Petitioner

received a total sentence of nineteen years incarceration plus three years of post-release

control. Return of Writ, Exhibit Four. The sentencing entry was amended

approximately three weeks later but the total sentence remained the same.

Petitioner timely appealed. He raised only two assignments of error:

First Assignment of Error: The trial court erroneously failed to

conduct a full inquiry to determine the nature and extent of any

breakdown in the attorney-client relationship between Appellant and trial

counsel.

Second Assignment of Error: Appellant’s convictions were not

supported by sufficient credible evidence. 

Return of Writ, Exhibit Seven. 

In a decision dated October 29, 2009, the Tenth District Court of Appeals found

no merit in these two assignments of error and affirmed petitioner’s conviction and

sentence. State v. Grisson, 2009 WL 3495054 (Franklin Co. App. October 29, 2009). The

Ohio Supreme Court subsequently denied review. State v. Grisson, 124 Ohio St.3d 1493

(March 3, 2010). 

Petitioner asserts in his petition that he also filed a post-conviction petition in the

Franklin County Court of Common Pleas. Respondent states that no such petition can

be located, and the Court’s review of the Franklin County Clerk of Courts’ website,

www.franklincountyohio.gov/clerk, does not reveal that petitioner ever filed a postCase: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 2 of 23 PAGEID #: <pageID>
3

conviction petition. Therefore, the Court is satisfied that the return accurately states the

procedural history of the cases and attaches the entire state court record.

On March 2, 2011, petitioner timely filed his petition for a writ of habeas corpus

in this Court. In his petition, he raised two issues, which he has phrased as follows:

GROUND ONE: 1. Assigned counsel refused to employ an

investigator to verify defendant’s alibi. 2. Assigned counsel refused to

subpoena exculpatory witnesses. 3. Defendant’s family hired counsel

who was disbarred prior to trial and judge ordered original counsel to

represent.

GROUND TWO: 1. One felonious assault offense went

unsupported by testimony of alleged victim or any witness that any

assault occurred.

It is respondent’s position that neither of these claims support the grant of habeas

corpus relief. 

II. FACTS

The pertinent facts are stated in the state court of appeals’ opinion as follows. 

These facts are presumed to be correct. See 28 U.S.C. § 2254(e)(1); see also House v. Bell,

283 F.3d 37 (6th Cir.2002).

Tameka Brightwell was on her front porch eating with family and friends

at approximately 7:00 p.m. on the evening the drive-by shooting occurred.

Tameka's daughter, Antonette, was present, along with Anonette's friend,

Robert Taylor, who worked with Antonette. Alfreda Hyppolite and her

three children were also there, along with several other friends and family

members.

Tameka testified that prior to the shooting, she heard her daughter,

Antonette, shouting on the phone with another girl. Tameka was aware

that Antonette had been having problems with a female she had met at

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 3 of 23 PAGEID #: <pageID>
4

work. Antonette testified that the girl she was arguing with over the

phone was Theresa Harper, who had recently been fired. At least one of

these arguments with Theresa occurred while Antonette was on her

mother's front porch. After Theresa threatened Antonette, Antonette hung

up on her. Theresa then called back and gave the phone to a man who

identified himself as “Kenny.” Kenny wanted Antonette and Theresa to

engage in a boxing match against each other. Antonette testified that

Kenny informed her that he and Theresa were coming over to Antonette's

house.

Approximately 10 to 15 minutes after this phone conversation ended,

Antonette was talking to friends and family on the porch when she heard

gunshots. Antonette testified she and her mother were on the porch and

Robert was right next to the porch. Tameka testified she was on her porch

standing by the steps and Antonette was on the sidewalk by the steps,

while Robert was right next to Antonette. Both Antonette and Tameka

testified that they observed a male firing shots at their house while driving

by in a green, four-door vehicle. Antonette heard six or seven shots while

Tameka testified to hearing five or six shots. Tameka testified that she was

hit in the face by one of those shots when she was standing on her front

porch. Antonette called 911. Police and emergency medical personnel

responded and Tameka was transported to the hospital. Medical

personnel treated her for injuries she received as a result of a single bullet

entering and exiting the right side of her face. She was released later that

night.

The Columbus Division of Police collected evidence, including spent shell

casings. Photographs were also taken of the scene, including the

residence. Detective Jeffrey Collins testified the investigation and the

photographs revealed what appeared to be a fresh bullet strike to

Tameka's residence.

The day after the shooting, Tameka was shown a photo array containing a

suspect who was not the appellant. Tameka did not select anyone from

that photo array. On May 18, 2007, after detectives had obtained

additional information, Tameka was shown a new photo array containing

a photo of the appellant. Using that photo array, Tameka identified

appellant as the shooter.

Tameka also made an in-court identification of appellant as the shooter. In

addition, Alfreda Hyppolite made an in-court identification of appellant

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 4 of 23 PAGEID #: <pageID>
5

as the shooter. She testified that she got a very good look at the shooter as

she was running to the sidewalk to protect her children after a gunshot

was fired. However, Alfreda had never been shown a photo array by

detectives and never identified appellant prior to trial.

Antonette was not able to identify appellant as the shooter, but she did

identify Theresa Harper as the female passenger in the shooter's vehicle,

via a photo array shown to her on March 21, 2007.

Theresa testified against appellant pursuant to a proffer and plea bargain

her attorney negotiated with the state of Ohio in exchange for a reduced

sentence. Theresa testified that she and appellant had been friends since

2004 and were both from the Hilltop area. On the date of the incident, she

and appellant and a man named “HB” were driving to the home of Robert

Taylor. She was the front seat passenger in a green vehicle being driven by

appellant.

While appellant was driving, Theresa informed him that Antonette had

called her several times that day. Appellant answered Theresa's phone the

next time Antonette called. Following an unfriendly conversation,

appellant advised Antonette that he and Theresa would be coming to her

house and that he wanted the two of them to fight. Theresa provided

appellant with directions to Antonette's house and pointed out the house

and Antonette to appellant. She observed Antonette on the porch and

Robert on the sidewalk in front of the house. As the car was slowing down

near Antonette's house, Theresa prepared to exit the vehicle. However, the

car did not stop and appellant began firing shots at the house. After the

car sped off, Theresa asked appellant why he did it and he explained that

he wasn't going to let anyone “send” or “play” her. (Tr. 292.)

Theresa was arrested for the shooting several hours later and was taken to

jail. She testified that she spent approximately 98 days in jail. During her

time in jail, Theresa testified that she did communicate with appellant

using a phone at the jail and that her calls were recorded. The state of

Ohio introduced portions of some of those phone calls in its case-in-chief.

During some of those calls appellant and Theresa had veiled discussions

regarding the incident. At least one of those calls involved a discussion of

whether or not Theresa was supposed to “take the rap” for appellant. (Tr.

326.)

State v. Grisson, 2009 WL 3495054, at *1-3. 

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 5 of 23 PAGEID #: <pageID>
6

III. THE MERITS

 The Court begins its discussion of petitioner’s two grounds for relief by

identifying the proper standard under which to review his claims.

 STANDARD OF REVIEW

The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.

104-132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.

Johnson, 532 U.S. 782, 791, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Wilson v. Parker, 515 F.3d

682, 691 (6th Cir.2008). AEDPA imposes a "highly deferential standard for evaluating

state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d

481 (1997), and "demands that state-court decisions be given the benefit of the doubt,"

Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam ). 

Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(footnote omitted) .

When the claims presented in a habeas corpus petition have been presented to

and decided by the state courts, a federal habeas court may not grant relief unless the

state court's decision was contrary to or an unreasonable application of clearly

established federal law, or based on an unreasonable determination of the facts in light

of the evidence that was presented. 28 U.S.C. § 2254(d) provides:

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 claimCase: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 6 of 23 PAGEID #: <pageID>
7

(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.

As the Supreme Court has explained, "an unreasonable application of federal law

is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362,

410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Harbison v. Bell, 408 F.3d 823, 829 (6th

Cir. 2005). Indeed, "a federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly." Id., at 411, 120 S.Ct.

1495. Rather, that application must be "objectively unreasonable." Id., at 409, 120 S.Ct.

1495. This distinction creates "a substantially higher threshold" for obtaining relief than

de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836

(2007). The Court will apply this standard to petitioner's claims. 

A. Ground One - Relationship with Counsel

The memorandum which petitioner has filed in support of his petition for a writ

of habeas corpus is basically a photocopy of the memorandum in support of jurisdiction

which petitioner filed in the Ohio Supreme Court. It summarizes petitioner’ first

ground for relief in this way: “When an indigent defendant questions the adequacy of

assigned counsel during trial, the court must conduct a full inquiry to determine the

nature and extent of any breakdown in the attorney-client relationship between

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 7 of 23 PAGEID #: <pageID>
8

defendant and trial counsel.” In support of that claim, petitioner argued there - and

argues here, since it is the same memorandum - that the record reflected “ongoing

tension” between petitioner and his trial counsel, including the fact that petitioner’s

mother had filed a disciplinary complaint against counsel and that there was some

frustration, apparently on petitioner’s part, as to how the case was being developed. 

The only citation to the trial record, however, is to a colloquy appearing at pages nine

and ten, during which trial counsel discussed the disciplinary complaint. The other

citations to the record relate to comments made by petitioner at the time of sentencing.

This is what counsel told the trial judge immediately prior to the commencement

of the trial:

[Mr. Hayes]: The second area to bring up for the record, there was a

bar complaint that was filed in this matter. It was filed not by my client

but by his mother. That bar complaint was dismissed.

Without going into the specifics of that, I wanted to place that on

the record that it was not filed by my client. I am not asking to be

withdrawn from this case. I think there’s some frustration as to how the

case is progressing and the development with it.

I wanted to place that on the record and see if my client wanted to

address that or not. I wanted to bring that to the Court’s attention as well.

See Return of Writ, Trial Transcript, Vol. I of II, at 9-10. 

Immediately after that statement was made, which occurred with petitioner in

the courtroom, there was a discussion of the State’s plea offer and the potential

maximum sentence petitioner was facing if convicted of all counts. The trial judge

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 8 of 23 PAGEID #: <pageID>
9

specifically addressed petitioner on that issue, and petitioner confirmed that he

understood the position of the State and did not need any more time to consult with

counsel about whether he would accept the State’s offer and plead guilty. The judge

did not ask about counsel’s statements concerning either the disciplinary complaint or

petitioner frustration with counsel, but petitioner also did not respond in any way to

counsel’s statement about whether he (petitioner) wanted to address that issue with the

court. The trial judge then indicated that the trial would begin at 9:00 a.m. the following

day. Id. at 14.

In his current memorandum, petitioner does not appear to distinguish between

the comments made at the beginning of the trial and the comments made at the time of

sentencing. Rather, lumping them all together, he argues that these comments

“warranted further inquiry by the trial court to determine whether the professional

relationship had deteriorated, or broken down completely.” See Petition, at 21. The only

federal case authority he cites to this Court is United States v. Jennings, 83 F.3d 145 (6th

Cir. 1996), a case in which the Court of Appeals held that the trial judge in that case did

not abuse his discretion when, after holding a hearing, he determined that the

relationship between defendants and their counsel had not deteriorated to the point

where counsel was prevented from presenting an adequate defense. In an earlier

decision in the same case, see United States v. Jennings, 945 F.2d 129 (6th Cir. 1991), the

Court of Appeals had held that the record was insufficient to determine if the trial judge

had afforded the defendants a full opportunity to voice their concerns about counsel’s

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 9 of 23 PAGEID #: <pageID>
10

performance, and remanded the case for further proceedings on that issue.

The state court of appeals, which is the last reasoned decision on the merits, 

addressed this issue as follows:

In his first assignment of error, appellant argues the trial court abused its

discretion by failing to make a full inquiry into the “ongoing tension”

between appellant and his counsel in order to determine whether there

was a breakdown in the attorney-client relationship. We find this

argument to be without merit.

“The term ‘abuse of discretion’ connotes more than an error of law or

judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450

N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d

144.

“The right to have counsel assigned by the court does not impose a duty

on the court to allow the accused to choose his own counsel[.]” Thurston v.

Maxwell (1965), 3 Ohio St.2d 92, 93, 209 N.E.2d 204. In order to discharge a

court-appointed attorney, the accused must show a breakdown in the

attorney-client relationship which jeopardizes his right to effective

assistance of counsel. State v. Coleman (1988), 37 Ohio St.3d 286, 292, 525

N.E.2d 792. The accused is not guaranteed a “meaningful relationship”

with his counsel. Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610,

1617, 75 L.Ed.2d 610. Mere personality conflicts or disputes as to trial

strategy are insufficient to require appointment of new counsel. State v.

Davis (May 19, 1998), 10th Dist. No. 97AP-1020, citing Morris. The fact that

an accused disagrees with his attorney regarding trial tactics and strategy

is insufficient to warrant the substitution of counsel. State v. Alexander,

10th Dist. No. 05AP-192, 2006-Ohio-1298. Yet, the accused is entitled to

competent assistance from counsel and when he expresses a specific

complaint during the course of the trial regarding counsel's effectiveness,

the trial court must inquire into the nature of the complaint. State v. Deal

(1969), 17 Ohio St.2d 17, 244 N.E.2d 742.

In Deal, the Supreme Court of Ohio held that, when an accused raises a

specific complaint regarding his dissatisfaction with counsel during the

course of the trial, the trial court has an obligation to ensure that the

record contains an adequate investigation of the complaint before

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 10 of 23 PAGEID #: <pageID>
11

continuing with the trial. Id. at 19-20, 244 N.E.2d 742.

Here, appellant did not advise the court of any dissatisfaction with his

counsel until approximately 30 days after the trial had concluded and

after he had been convicted by the jury and was about to be sentenced. In

State v. Frazier, 10th Dist. No. 05AP-425, 2006-Ohio-1475, we held that

where the appellant did not raise a claim of dissatisfaction with his

appointed counsel until the time of his sentencing hearing, Deal was not

applicable. In State v. Morrison, 10th Dist. No. 02AP-651, 2003-Ohio-1517,

we determined that a Deal inquiry was not required where a defendant's

complaint was brought to the attention of the court by defense counsel

during a resentencing hearing. See also Davis (“[w]hen * * * a defendant

fails to raise specific concerns about his appointed counsel with the court

during trial, we have held that the requirements of Deal are not

implicated”). Therefore, we find that a Deal inquiry was unnecessary here.

To the extent that appellant argues counsel's comments to the trial court

made prior to the start of the trial regarding appellant's “frustrations”

with the progress of the case are enough to trigger a Deal inquiry, we

reject that claim as well.

Immediately prior to trial, appellant did not make any complaints

regarding his representation. While appellant's trial counsel advised the

court that appellant may have been frustrated with the progress of the

case, counsel also advised the court that he had recently located and

interviewed a witness whom appellant had requested that he contact.

Appellant did not offer any comments on the record with respect to this.

Additionally, regarding the issue of the bar complaint, it is significant to

note that it was filed by appellant's mother, rather than by appellant, and

appellant did not offer any information regarding the complaint, as the

issue was raised solely by counsel. We also note that the substance of the

complaint is not in the record, and appellant's counsel informed the trial

court that the matter had been dismissed and therefore, it was no longer at

issue. Furthermore, the mere fact that a complaint has been filed with the

bar association does not in itself warrant an inquiry by the trial court. See

Alexander, supra, at ¶ 22.

An accused bears the burden of presenting evidence that demonstrates

grounds for the appointment of new counsel. If the accused alleges facts

that, if true, would require relief, then the trial court must inquire into the

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 11 of 23 PAGEID #: <pageID>
12

complaint and make that inquiry a part of the record. Alexander at ¶ 16,

citing State v. Smith (Dec. 29, 1998), 4th Dist. No. 98CA12.

In the instant case, the record does not contain specific facts or evidence

that warrant a further inquiry, as appellant did not make a specific

complaint regarding his counsel until the time of the sentencing hearing.

Therefore, based upon the reasons set forth above, we find the trial court

did not abuse its discretion in failing to conduct a full inquiry.

Accordingly, we overrule appellant's first assignment of error.

State v. Grisson, supra, at *4-5.

As an initial matter, the Court agrees that the comments made immediately prior

to sentencing could not form the basis for any alleged constitutional violation. At that

point, the trial was over, and the comments made by petitioner did not relate to the only

remaining issue before the trial court, which was sentencing. Therefore, even if a

hearing had been held at that point, nothing could have been accomplished except,

perhaps, laying the groundwork for a motion for a new trial - a motion that petitioner

never filed. Thus, the real issue here is whether the state trial court violated petitioner’s

right to the effective assistance of counsel by not inquiring further about the comments

made by counsel on the day before the trial; or, to put it more precisely, whether the

state court’s determination that no such constitutional violation occurred either was

contrary to, or represented an unreasonable application of, well-established federal law

as it existed on the date of the court of appeals’ decision. See Greene v. Fisher, __ U.S. __,

80 U.S.L.W. 4013 (November 8, 2011).

The state court relied heavily on the Ohio Supreme Court’s decision in State v.

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 12 of 23 PAGEID #: <pageID>
13

Deal, 17 Ohio St.2d 17 (1969) in analyzing this question. Deal was a relatively brief

decision which did not cite to any federal law, but which, in the context of determining

if the defendant had been “denied effective of assistance of counsel,” held that when a

defendant makes a specific objection during trial to counsel’s performance - in that case,

counsel’s alleged failure to file a notice of alibi defense and to subpoena witnesses - the

trial court has an obligation to make a further inquiry in order to insure that the

defendant’s right to the effective assistance of counsel is protected.

This issue does not often come up simply on the basis of stray comments made

during the course of trial or pretrial proceedings. Rather, it usually arises in the context

of a formal motion or oral request made by a criminal defendant to remove or substitute

counsel, something which did not occur here. When such a motion is presented and

denied, a reviewing court is required to engage in a multi-factor inquiry which requires

consideration of the timing of the request, the adequacy of the trial court’s inquiry into

the underlying facts, the extent of the conflict between the defendant and the attorney,

the extent to which that conflict rendered meaningful communication difficult or

impossible, and whether allowing substitution of counsel would have prejudiced the

interests of justice. See, e.g., United States v. Vasquez, 560 F.3d 461, 466 (6th Cir. 2009);

United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001).

Here, to the extent that these factors apply, the failure of the defendant to make

any request - even when invited by his counsel on the record to do so - for a new

attorney weighs heavily against any constitutional violation. The only time he

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 13 of 23 PAGEID #: <pageID>
14

expressed any dissatisfaction with counsel, at least on the record, was at sentencing,

which was far too late in the day to have had any effect on the trial itself. It is true that

the trial judge did not make a specific inquiry into the facts related by counsel on the

day before the trial, but the Court has not located any cases suggesting that on this

sparse of a record, such an inquiry is constitutionally mandated. To the contrary, even

an ambiguous statement from a defendant on this issue has been held not to trigger an

absolute duty on the part of the trial court to make further inquiry. See, e.g, Romero v.

Furlong, 215 F.3d 1107, 1114 (10th Cir. 2000); cf. United States v. Lott, 310 F.3d 1231, 1249

(10th Cir. 2002)(duty to inquire is triggered when “a defendant makes sufficiently

specific, factually based allegations in support of his request for new counsel ...”);

United States v. Iles, 906 F.2d 1122, 1131 (6th Cir. 1990) (“The need for an inquiry will not

be recognized, however, where the defendant has not evidenced his dissatisfaction or

wish to remove his appointed counsel”).

As to the second and third factors, it is impossible to tell from this record if there

had been either an extensive history of conflict or an irretrievable breakdown in

communications between petitioner and his attorney, in large part due to petitioner’s

own failure to address the issue when invited to do so by trial counsel. Certainly, there

is no evidence in the record of such a breakdown prior to trial, and there is evidence to

the contrary in the form of the questions posed to petitioner about his understanding of

the State’s plea offer and whether he needed more time to discuss it with counsel. It

would have been very easy for petitioner to respond at that point that he was unable to

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 14 of 23 PAGEID #: <pageID>
15

communicate effectively with counsel about that or any other subject, but he did not. 

Under these circumstances, the Court cannot find that the state appellate court’s

decision on this issue is either contrary to any well-established federal constitutional

principals, or an unreasonable application of the test described in Vasquez and many

other federal court decisions which have dealt with this type of issue. Therefore,

petitioner’s first ground for relief lacks merit.

B. Sufficiency of the Evidence

Petitioner’s second claim is that the evidence was insufficient to support his

conviction. Again, as he framed this argument in his memorandum in support of

jurisdiction filed with the Ohio Supreme Court, and repeated here as part of his habeas

corpus petition, that there was “minimal evidence” to support the assault conviction

with respect to Robert Taylor, who was somewhere in the vicinity when the shots in

question were fired, and that the evidence linking petitioner to the shooting was

“subject to challenge.” See Petition, at 23.

Such a challenge to the sufficiency of the evidence, when made in a habeas

corpus petition subject to the AEDPA, must meet an exacting standard. As this Court

explained in Lynch v. Hudson, 2011 WL 4537890, *81-82 (S.D. Ohio September 28, 2011): 

In Jackson v. Virginia {443 U.S. 307 (1979)], the United States Supreme

Court held that as a matter of fundamental due process, a criminal

conviction cannot stand unless each essential element is proven beyond a

reasonable doubt. 443 U.S. at 316. The Supreme Court explained that

when reviewing a challenge to the constitutional sufficiency of the

evidence supporting a criminal conviction, “the relevant question is

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 15 of 23 PAGEID #: <pageID>
16

whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. at 319. The Supreme

Court cautioned, with respect to the role of a reviewing court, that “[t]his

familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Id. Thus, after

reviewing the evidence in a light most favorable to the prosecution and

respecting the trier of fact's role in determining witnesses' credibility and

weighing the evidence, a federal court must grant habeas corpus relief “if

it is found that upon the record evidence at the trial no rational trier of fact

could have found proof of guilt beyond a reasonable doubt.” Id. at 324.

It is important to remember when reviewing a sufficiency of the evidence

challenge that this Court “do[es] not reweigh the evidence, re-evaluate the

credibility of the witnesses, or substitute [its] judgment for that of the

jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009). If the record

contains credible, competent evidence enabling a rational jury to find each

essential element beyond a reasonable doubt, then Petitioner's challenge

to the sufficiency of the evidence fails. Cf. Matthews v. Abramajtys, 319 F.3d

780, 788–89 (6th Cir.2003) (“The mere existence of sufficient evidence to

convict therefore defeats a petitioner's claim.”).

*Further, as the Sixth Circuit has explained, “[i]n a habeas proceeding,

however, we cannot simply conduct de novo review of the state court's

application of [the Jackson v. Virginia] rule, but must review its

sufficiency-of-the-evidence decision under the highly deferential standard

of the AEDPA.” Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir.2008). In Tucker

v. Palmer, 541 F.3d 652 (6th Cir.2008), the Sixth Circuit explained in more

detail:

Accordingly, the law commands deference at two levels in

this case: First, deference should be given to the trier-of-fact's

verdict, as contemplated by Jackson; second, deference

should be given to the Michigan Court of Appeals'

consideration of the trier-of-fact's verdict, as dictated by the

AEDPA.

Id. at 656. See also Parker v. Renico, 506 F.3d 444, 448 (6th Cir.2007); Nash v.

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 16 of 23 PAGEID #: <pageID>
17

Eberlin, 258 F. App'x 761, 765 (6th Cir.2007). This Court recognizes,

however, that “even after AEDPA, [the Court] must ‘distinguish

reasonable speculation from sufficient evidence’ when reviewing a state

court's application of Jackson.” Smith v. Romanowski, No. 07–1578, 2009 WL

1884451, at *6 (6th Cir. Jul.1, 2009) (Moore, J., dissenting) (quoting Brown v.

Palmer, 441 F.3d 367, 352 (6th Cir.2006)).

The state court of appeals identified the correct legal standard under which to

evaluate this claim, citing to State v. Thompkins, 78 Ohio St.3d 380 (1997), which, in turn,

cited to Jackson v. Virginia. The state court reasoned as follows:

Appellant argues the evidence identifying him as the shooter is subject to

challenge under a sufficiency and manifest weight review. We disagree.

Although the events of the drive-by shooting may have happened very

quickly, leaving little time for witnesses to observe the events, several

witnesses were able to identify appellant as the shooter. Tameka

positively identified appellant from a photo array and also made an

in-court identification. Appellant has failed to raise a legitimate challenge

to the photo array presented to Tameka. In addition, Antonette testified

that she had been on the phone with a man identified as “Kenny” just

minutes before the shooting who stated he was on his way over to her

house with Theresa. Antonette identified Theresa as the passenger in the

vehicle from which the shots were fired. Theresa, who has known

appellant for several years, testified that he was the shooter.

The recorded jail calls between appellant and Theresa also corroborate the

identification of appellant as the shooter, as it can be inferred from the

conversations that appellant was involved and wants Theresa to take the

fall because he does not want to go to jail. Finally, although the

identification by Alfreda could have possibly been stronger if she had

been shown a photo array and selected appellant as the shooter prior to

making an in-court identification, the jury was free to consider the

credibility of the witnesses. We cannot say, based upon all of the

identification testimony, that reasonable minds could not have arrived at

the conclusion that appellant was the shooter, nor can we say that the jury

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 17 of 23 PAGEID #: <pageID>
18

clearly lost its way in reaching that determination.

Next, appellant challenges the testimony of his co-defendant on the

grounds that her testimony should be carefully examined because she

received a substantial benefit as a result of her cooperation, which resulted

in a sentence of community control, rather than prison. However, the jury

was aware early on of the “sweetheart deal” that Theresa received in

exchange for her truthful testimony. (Tr. 46.) Furthermore, the jury

instructions provided by the court contained language advising the jurors

that the testimony of a co-defendant or accomplice was “subject to grave

suspicion” and should be “weighed with great caution.” (Jury

Instructions, R. 185 at 5.) Based upon this, we cannot say that a reasonable

jury would not carefully examine Theresa's testimony and, considering

the corroborating testimony of the other witnesses, conclude that

appellant was the shooter.

Finally, we find appellant's assertion that only minimal evidence existed

to convict him of felonious assault on the count involving Robert Taylor is

without merit.

The applicable provision of the felonious assault statute found in R.C.

2903.11(A)(2) provides in relevant part: “[n]o person shall knowingly * * *

[c]ause or attempt to cause physical harm to another * * * by means of a

deadly weapon * * *.” “Attempt” is further defined as purposely or

knowingly engaging in conduct that, if successful, would constitute or

result in the offense. R.C. 2923.02(A). “Deadly weapon” is defined as “any

instrument, device, or thing capable of inflicting death, and designed or

specially adapted for use as a weapon, or possessed, carried, or used as a

weapon.” R.C. 2923.11(A). This includes a firearm or handgun such as the

one used in this incident. See generally R.C. 2923.11.

In State v. Phillips (1991), 75 Ohio App.3d 785, 792, 600 N.E.2d 825, a case

similar to the instant case, the defendant randomly fired at least five shots

in the direction of the victims during a drive-by shooting. As a result,

several individuals were injured. Phillips was convicted of five counts of

felonious assault. On appeal, Phillips argued the evidence did not support

his convictions because there was no testimony that he had aimed the

weapon at a particular individual. However, the court of appeals found

that his “intent to cause physical harm to the five individuals could be

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 18 of 23 PAGEID #: <pageID>
19

inferred from his having shot a gun randomly in the direction of each

individual.” Id.

In State v. Thompson (Nov. 10, 1997), 10th Dist. No. 97APA04-489, we also

held that an attempt to cause physical harm may be inferred from the act

of firing a gun in the direction of an individual. (“When appellant fired

the gun in the direction of [the victim], he committed an overt act

sufficient to support the finding that he knowingly attempted to cause

physical harm.”)

Firing a weapon randomly in the direction of individuals who are

arguably within range of the shooter is sufficient to demonstrate an

attempt to cause physical harm. Phillips at 792, 600 N.E.2d 825. The firing

of the gun alone is sufficient evidence of intent to cause physical harm. Id.

See Thompson and State v. Gray, 10th Dist. No. 04AP-938, 2005-Ohio-4563

(intent to cause or attempt to cause physical harm is inferred by shooting

the gun in the direction of the victim). See also State v. Windom (Dec. 30,

1997), 10th Dist. No. 97APA03-370 (given the proximity of the victims to

one another, who were standing in a group, it was reasonable to infer that

the defendant's conduct created a substantial risk of serious physical harm

to all of the persons in the group).

Here, the testimony supports the conclusion that Robert was standing in

the very area where the shots were fired. Antonette and Tameka testified

to hearing anywhere from five to seven shots. The state of Ohio

introduced photographic evidence and testimony demonstrating that it

was likely at least one of the bullets fired during the shooting struck

Tameka's house. Tameka, who was on the porch, was also struck by one of

those shots. Tameka testified that Robert was standing next to Antonette

who was next to the steps leading to the porch in front of the house when

the shooting occurred. Antonette testified that Robert was standing next to

the porch when shots were fired, and Theresa testified that Robert was

standing in front of the house on the sidewalk as the car approached the

residence. A review of the photographs submitted into evidence reveals

that the porch, steps, sidewalk, and front yard at 1022 Wilson Avenue

encompass a very small area. Thus, the evidence supports the conclusion

that Robert was in very close proximity to both Antonette and Tameka.

Therefore, appellant's intent to cause physical harm to Robert is inferred

by the fact that he shot the gun several times in the direction of Robert

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 19 of 23 PAGEID #: <pageID>
20

Taylor and others who were gathered on or around the porch of Tameka's

residence, even though the bullets only struck Tameka.

Therefore, viewing the evidence in a light most favorable to the state, we

find that a rationale trier of fact could have concluded that appellant

knowingly attempted to cause physical harm to Robert Taylor. 

State v. Grisson, supra, at *7-9.

Taking the issues in the order petitioner has raised them, the state court’s

determination that a reasonable jury could have found that Robert Taylor was

the victim of an assault was not an unreasonable application of the Jackson

standard. As the court of appeals points out, all four of the alleged assault

victims were standing in a very small area when petitioner drove by and fired

between five and seven shots. The shots were fairly widely scattered. The jury

certainly could have inferred that Mr. Taylor was within a zone of danger and

that petitioner was not that particular about whom, if anyone, his shots actually

hit. 

To be sure, there are situations where someone who is near to the scene of

drive-by shooting cannot properly be classified as a victim of an assault. For

example, in State v. Abuan, 161 Wash. App. 135 (2011), the court set aside a

conviction for assault of an alleged victim who was present in a house during a

drive-by shooting because there was no evidence that the defendant knew of the

victim’s presence, and all of the shots were directed toward the garage in which

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 20 of 23 PAGEID #: <pageID>
21

the intended victims were located rather than at the house. Here, by contrast,

Mr. Taylor was present and visible at the scene, and the jury could reasonably

have inferred that the shots were directed at a group of people and not any

specific individual. Nothing more was needed to support a conviction for the

assault on Mr. Taylor.

Petitioner’s argument about the sufficiency of the evidence proving that

he was the shooter is even less compelling. As the state court of appeals

observed, this was not a case where the evidence that petitioner was the shooter

was purely circumstantial. Rather, petitioner’s friend, Theresa Harper, who was

exchanging telephone calls with Antonette Brightwell just before the shooting,

testified as an eyewitness, stating that she was in the car being driven by

petitioner, that he drove to the location of the shooting, that petitioner fired the

shots as she was attempting to get out of his car, and that he provided her with

an explanation for his actions. Even if this had been the only testimony

presented on the issue of identification, and even though the State had made

concessions to Ms. Harper in exchange for her testimony, the jury was free to

believe her. See United States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004)

(uncorroborated testimony of an accomplice can support a conviction, and

whether that testimony was influenced by the prospect of a reduced sentence “is

for the jury to decide”). 

Of course, Ms. Harper’s testimony was not the only evidence linking

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 21 of 23 PAGEID #: <pageID>
22

petitioner to the crime. As the court of appeals’ recitation of the evidence

indicates, several of the victims also picked petitioner’s picture out of a photo

array and some of them identified him in the courtroom. It was certainly within

the province of the jury to believe some or all of that testimony. The state court’s

conclusion that, drawing all inferences in favor of the jury’s verdict, the evidence

was sufficient to support a finding that petitioner was the shooter is neither

contrary to nor an unreasonable interpretation of Jackson v. Virginia. Because that

is so, there is no basis for granting petitioner any relief on his second claim.

 IV. RECOMMENDED DISPOSITION

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that

the petition for a writ of habeas corpus be DISMISSED. 

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may,

within fourteen days of the date of this Report, file and serve on all parties

written objections to those specific proposed findings or recommendations to

which objection is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may

receive further evidence or may recommit this matter to the magistrate judge

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 22 of 23 PAGEID #: <pageID>
23

with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge

review the Report and Recommendation de novo, and also operates as a waiver

of the right to appeal the decision of the District Court adopting the Report and

Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters,

638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:11-cv-00194-JLG-TPK Doc #: 8 Filed: 11/15/11 Page: 23 of 23 PAGEID #: <pageID>