IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LOWELL P. POULSON , CASE NO. 2:11-cv-1067

Petitioner, JUDGE ALGENON L. MARBLEY

v. Magistrate Judge Kemp

WARDEN, ROSS CORRECTIONAL 

INSTITUTION.

Respondent. 

OPINION AND ORDER

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. §2254. On September 25, 2012, the Magistrate Judge recommended that the case be

dismissed on its merits. Petitioner has filed an objection to that recommendation. For the

following reasons, the objection will be OVERRULED and this case will be DISMISSED.

 I. STANDARD OF REVIEW

When objections are received to a Magistrate Judge's Report and Recommendation on a

dispositive matter, the assigned District Judge "shall make a de novo determination ... of any

portion of the magistrate judge's disposition to which specific written objection has been made

...." Fed. R. Civ. P. 72(b). After review, the District Judge "may accept, reject, or modify the

recommended decision, receive further evidence, or recommit the matter to the magistrate judge

with instructions." Id.; see also 28 U.S.C. §636(b)(1)(B). General objections are insufficient to

preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has

the same effects as would a failure to object." Howard v. Secretary of Health and Human

Services, 932 F.2d 505, 509 (6th Cir. 1991). 

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II. BRIEF BACKGROUND OF THE CASE

Petitioner was charged with and convicted of robbing a Donato’s Pizza restaurant on

Noe-Bixby Road on the east side of Columbus on December 10, 2008. According to the various

witnesses, including several employees of the restaurant who were herded into a back room at

gunpoint and kept there while the robbery took place, there were two robbers, both wearing

masks, and identifying them was therefore difficult. As more fully discussed below, however,

one of these witnesses, Keri Richardson, said she could identify the man who held her at

gunpoint by his eyes, and she picked petitioner’s photograph out of photo array within days of

the robbery and identified him in court. There was circumstantial evidence suggesting

petitioner’s involvement in the robbery, including the undisputed fact that his truck was the

getaway vehicle (it was stopped by police shortly after the robbery but neither of its occupants

was apprehended at that time) and the fact that DNA matching a long-time acquaintance of

petitioner’s was found on a ski mask in the truck. On the other hand, petitioner presented a

number of alibi witnesses and strongly contested Ms. Richardson’s identification of him as one

of the robbers. The jury ultimately resolved these issues in favor of the state and found

petitioner guilty. He received an aggregate sentence of fourteen years in prison due to

convictions on a related weapons charge and on a firearm specification. 

Petitioner challenged his conviction on appeal, contending both that the evidence was

insufficient to convict him and that Ms. Richardson’s identification of him was unreliable and

should have been suppressed, and he raises those same two issues in this Court. The state court

of appeals’ discussion of and disposition of these issues is set forth both in that court’s opinion,

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see State v. Poulson, 2010 WL 3011081 (Franklin Co. App. Aug. 3, 2010), and in the Report and

Recommendation (Doc. 17), and the Court will not repeat it in detail in this Opinion and Order

except as necessary to explain why the Report and Recommendation concluded (as it did) that

the state court’s determination of these issues was not contrary to, or an unreasonable application

of, federal law - the standard of review prescribed in 28 U.S.C. §2254(d), which prohibits a

federal court from overturning a state conviction unless the state court’s adjudication of a federal

constitutional issue “(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.” See also Williams v.

Taylor, 529 U.S. 362 (2000). 

III. THE REPORT AND RECOMMENDATION

The Report and Recommendation first concluded that, contrary to Respondent’s

argument, the claim attacking the constitutional sufficiency of the evidence was not procedurally

defaulted because it was presented to the state courts not just as a claim that the conviction was

against the manifest weight of the evidence, but a claim based on the Due Process Clause of the

Fourteenth Amendment. Respondent has not objected to that determination, and it appears to be

correct, so this Court will also reach the merits of both of petitioner’s claims.

The Report and Recommendation also noted that the analysis of the sufficiency of the

evidence differs depending upon whether Ms. Richardson should have been permitted to identify

petitioner as one of the robbers. Therefore, it addressed that claim first. This Court will do

likewise.

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A. Eyewitness Identification

The state court of appeals concluded that under applicable federal precedent, particularly

Neil v. Biggers, 409 U.S. 188 (1972) and Manson v. Brathwaite, 432 U.S. 98 (1977), the trial

judge did not abuse his discretion by admitting Ms. Richardson’s identification testimony. That

court held that the proper procedure to follow on review of this type of claim is to weigh the

testimony against the five indicia of reliability set forth in Neil v. Biggers, and then to consider

against these factors “[t]he corrupting effect of any suggestive identification procedure ....” State

v. Poulson, 2010 WL 3011081, *8 (Franklin Co. App. Aug. 3, 2010). In a detailed analysis

quoted in the Report and Recommendation, the court of appeals concluded, first, that each of the

five Neil factors - “the opportunity of the witness to view the criminal at the time of the crime,

the witness' degree of attention, the accuracy of his prior description of the criminal, the level of

certainty demonstrated at the confrontation, and the time between the crime and the

confrontation,” see id., weighed in favor of admitting the testimony. Next, the court of appeals

reviewed the identification procedure - a photo array - and concluded that it was not suggestive,

and that proper procedures had been followed by Detective Longworth when he assembled the

array and showed it to Ms. Richardson. Consequently, applying what it described as a “totality

of the circumstances” approach, the state court held that no error was committed when the trial

court permitted Ms. Richardson to testify that petitioner was the man who held her at gunpoint

during the robbery. Id. at 10.

There is no question that the state court identified the key cases from the United States

Supreme Court which deal with the issue of when the admission of an unduly suggestive or

unreliable identification by an eyewitness violates the Due Process Clause. See, e.g., Howard v.

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Bouchard, 405 F.3d 459, 481 (6th Cir. 2005). Consequently, the question for this Court is

whether the state court’s application of the principles set forth in those cases was unreasonable

given the set of facts with which the state court was presented. Before turning to that question,

however, the Court will address an issue which petitioner raises in his objections concerning the

applicability of United States v. Wade, 388 U.S. 218 (1967) to this case.

United States v. Wade dealt with a post-indictment lineup - that is, a line-up which

occurred only after the defendant had been indicted and after counsel had been appointed to

represent him. Counsel was not notified that the lineup would be conducted. Defendant, who

was accused of robbing a bank, was picked out of the lineup by two bank employees, and they

identified him at trial. The Supreme Court held that they should not have been allowed to do so

because such a lineup is a “critical stage” of the proceedings and the defendant was unduly

prejudiced by the absence of his counsel at the lineup. 

Undoubtedly, the issues relating to suggestive identification procedures are not confined

to line-ups, and a witness can be misled into making an incorrect identification during other

types of identification procedures, including photo arrays. However, Wade, which is primarily a

Sixth Amendment case, has never been applied to photo arrays, and particularly not to those

which occur prior to the time that a suspect is charged and the right to counsel attaches. See,

e.g., United States v. Jackson, 304 Fed. Appx. 424, 430 n.1 (6th Cir. December 23, 2008) (“the

defendant's claim that identification evidence should have been suppressed under United States

v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), is without merit because he was

identified in a photo array and not in a corporeal line-up”). Thus, the fact that neither petitioner

nor his counsel was present when the photo array was shown to Ms. Richardson is not an

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independent constitutional violation, nor did the state court err in any way by failing to apply

Wade to petitioner’s claims on appeal.

Before addressing petitioner’s claim directly, the Court notes that, under controlling

Sixth Circuit precedent, the analysis of a claim of improper identification procedures follows a

definite order of decision-making. “The court first considers whether the [identification]

procedure was unduly suggestive.” Ledbetter v. Edwards, 35 F.3d 1062, 1070-71 (6th Cir. 1994). 

If not, the inquiry is at an end. However, “[i]f the court does find that the procedure was unduly

suggestive, it next evaluates the totality of the circumstances to determine whether the

identification was nevertheless reliable.” Id. at 1071. The five indicia of reliability identified in

Neil v. Biggers come into play only at that step. Id. Here, the state court reversed the order of

decision-making, analyzing the Neil factors first and then determining that the photo array

procedure was not unduly suggestive. State v. Poulson, 2010 WL 3011081, at *8-9. This order

of analysis actually favors the defendant, so even though it does not strictly conform with the

procedure which this Court would follow in reviewing such a claim, it cannot be characterized as

an unreasonable application of federal law.

Taking the issues in the order prescribed by Ledbetter, the state court found that the

photo array procedure was not unduly suggestive. It focused on these factors: (1) that the array

shown to Ms. Richardson was “computer-generated”; (2) that “the other five photographs were

all reasonably close in appearance to appellant’s photograph”; (3) that “[t]he photo of appellant

did not stand out from all of the photos”; (4) that “Detective Longworth followed correct photo

array procedures”; (5) that “[t]he photos were arranged in no particular order of importance”;

and (6) that “it was never suggested to Richardson that she was required to pick someone from

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the photo array.” State v. Poulson, supra, at *9. 

Petitioner argues that each of these findings is incorrect, and unreasonably so in light of

the uncontroverted evidence presented at trial. He points out that, as to the first of the state

court’s findings, although the computer suggested the photos to be used, Detective Longworth

selected the five other photographs himself from a larger group generated by the computer, and

he did not include any Caucasian or Hispanic subjects even though several of the witnesses

suggested that the lighter-skinned of the two robbers might not have been African-American. As

to the second finding, he contends that it is apparent from the array itself that he was the only

light-skinned subject, making him stand out from the rest. As to the third finding, he claims that

his picture, which was placed in the center of the top row, stood out like a beacon. As to the

fourth finding, he notes that the prescribed procedure for photo arrays required that a written

explanation be given to and signed by the witness before the array is shown, but that in this case

Detective Longworth did not present that information to Ms. Richardson until after she had

viewed the array and selected his photograph. On the fifth point, he again notes the placement of

his picture in the center of the top row. Finally, on the sixth point, he argues that all of these

other flaws in the process lead inescapably to the conclusion that Ms. Richardson was

encouraged, and practically required, to pick him out of the array.

The facts in this case are more or less as petitioner claims them to be, with a few

exceptions. First, this Court does not view the photo array itself as clearly suggesting a suspect;

there is a good deal of resemblance between petitioner’s photo and the other five, although one’s

eyes might be drawn to his picture first because of its placement and because there is light

reflected from his forehead in a way which is somewhat different from the other photos. It is

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true that Detective Longworth did choose not to include any non-African-Americans in the array. 

It is not as clear as petitioner claims that proper procedure was not followed; Detective

Longworth testified that he read the photo array form to Ms. Richardson before she looked at the

pictures and explained to her that they were not placed in any particular order and that she was to

look at all six. (Trial Transcript, at. 6). She testified that she was asked to look at the photos

and to tell him if she recognized anyone, and that although he “didn’t go over a statement,” he

“showed me a paper.” (Tr. 79). She also affirmed that he did not tell her that the suspect was in

the array. (Tr. 82). One additional fact, which may have some significance, is that she was

shown another photo array before this one and did not select anyone’s picture from that array.

After considering petitioner’s arguments, which would be good arguments to have made

to the jury concerning the weight to be given to Ms. Richardson’s claimed identification of him,

the Court cannot say that the state court unreasonably determined the issue of suggestiveness. 

The law does not regard every difference in the pictures of a suspect and others in the array as

suggestive. As one court has noted, “[t]he due process clause does not require law enforcement

officers to scour about for a selection of photographs so similar in their subject matter and

composition as to make subconscious influences on witnesses an objective impossibility.” 

United States v. Bubar, 567 F.2d 192, 199 (2d Cir. 1977). If the skin tone difference was

dramatic, the array could be suggestive, see, e.g., Jarrett v. Headley, 802 F.2d 34, 41 (2d Cir.

1986), but it does not appear to this Court that the differences in the photos in this array are so

dramatic as to suggest that only petitioner could have been the suspect. As Detective Longworth

testified, and this testimony is borne out by the array, although the complexions of some of the

persons whose pictures were selected were darker than petitioner’s, there were “a couple that are

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pretty close” and petitioner’s complexion was only “a slight shade lighter.” (Tr. at 12). Courts

have also held that the placement of a suspect’s picture in the top center position does not

support a claim of improperly suggestive procedures. See United States v. Burdeau, 168 F.3d

352 (9th Cir. 1999). There is also nothing in this record to support the claim that because of a

minor discrepancy between Detective Longworth’s testimony and Ms. Richardson’s concerning

what, exactly, he told her, the state courts should have found the procedure tainted. Neither of

those witnesses’ testimony suggests in any way that she was told something which made her

focus on petitioner’s photograph, and she specifically testified to the absence of any such

coaching. As this Court has stated, “photo arrays generally become unnecessarily suggestive

only when the officer conducting the array directs the witness to pick one specific photograph or

otherwise indicates which photograph is the suspect ....” United States v. Mathis, 2008 WL

1990443, *7 (S.D. Ohio May 2, 2008). There is no evidence of that type of conduct here. 

Even if the state court was wrong, and unreasonably so, on the issue of whether the photo

array procedure was unduly suggestive, this Court could not grant relief unless the Neil v.

Biggers factors also point in the direction of an unreliable identification. The state court found

that all five factors favored admissibility of Ms. Richardson’s testimony; again, petitioner argues

that each of these separate determinations was unreasonable in light of the facts of record.

The state court found that Ms. Richardson’s testimony was reliable because: (1) she had

a good opportunity (three to four minutes or more) to observe petitioner’s face (or what there

was visible of it under the ski mask); (2) she paid close attention to the features she could see;

(3) she provided an accurate description of those features to Detective Longworth immediately

after the robbery; (4) she expressed 100% certainty about her identification; and (5) she picked

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his photo out of the array within five days of the robbery. State v. Poulson, supra, at *8-9. 

Petitioner argues that these findings do not comport with the record because: (1) Ms. Richardson

only had a matter of seconds within which to observe the robber; (2) her identification was

limited to the eyes and eyebrows of the suspect, and she misidentified the eyebrows, stating that

they had some gray in them (petitioner’s do not); (3) her description of petitioner was not

accurate, for the same reason, and no one else was able to identify him; (4) her “100% certain”

identification at the photo array was tainted by the suggestiveness of the procedures; and (5) at

the time she viewed the array, petitioner was not represented by counsel and counsel was not

present.

Here, the record is not nearly as clear as petitioner would have it. The witness who

estimated that only a matter of seconds elapsed between the time the robbers entered the store

and when they left was not in the back room. Ms. Richardson, who was, said that she was there

with the robber for “[a]bout a minute or two.” (Tr. 78). Her identification included skin tone,

which matched petitioner, and eye color and characteristics, as well as the statement petitioner

focuses on about the robber having had darker eyebrows with either a little bit of gray in them,

or of a grayish color. She gave the same description consistently, both immediately after the

incident and at other times. This Court has already concluded that there was little, if any,

suggestiveness about the photo array procedure. And finally, petitioner was not entitled to have

counsel present when the array was shown. Consequently, there is not much persuasive force to

his arguments on these factors. And even if this Court might disagree with the state court on one

or two of them, that does not mean that its balancing of these factors against a relatively nonsuggestive photo array procedure led to an unreasonable result.

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It is important to remember that, when a federal court reviews a claim like this in the

context of a habeas corpus action, it may not substitute its views for that of the jury in terms of

whether to credit eyewitness testimony, nor may it grant relief on a claim just because it

disagrees with the state courts about the law. Even in a case where a federal court may entertain

substantial doubt about the state court’s decision on some of the Neil v. Biggers factors, and

where the pre-trial identification proceeding was suggestive, the “AEDPA requires us to afford

wide latitude for the state court's determinations on the merits.” Grayer v. McKee, 149 Fed.

Appx. 438, 448 (6th Cir. September 9, 2005). Factual determinations such as those made by the

state court in this case cannot be overturned without clear and convincing evidence of their

inaccuracy. 28 U.S.C. §2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004). 

Petitioner has presented cogent arguments, but there are good arguments to be made as well in

support of the state court’s determination of this claim. When that is the case, this Court is

powerless to grant relief. 

B. Sufficiency of the Evidence

The Report and Recommendation began its analysis of this claim by stating, in a way not

challenged by petitioner:

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 whether, after viewing the

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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. 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

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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)).

Report and Recommendation, at 21-23. 

This Court agrees, primarily for the reasons set forth in the Report and Recommendation,

that the state court’s determination of the sufficiency of the evidence cannot be successfully

challenged here, especially given the fact that Ms. Richardson’s eyewitness identification of

petitioner was properly before the jury. Although petitioner, in his objections, asserts that “the

Prosecution presented not one single piece of evidence that, beyond a reasonable doubt,

establishes that the Petitioner participated in a robbery of a Donato’s restaurant,” Objections, at

17, as the Report and Recommendation correctly points out, the uncorroborated identification of

suspect by a victim of a crime is enough evidence on which to base a conviction. Hawkins v.

Coyle, 2004 WL 5708285, *59 (S.D. Ohio March 22, 2004), adopted and affirmed 2005 WL

1684022 (S.D. Ohio July 19, 2005), aff’d in part and rev’d in part 547 F.3d 540 (6th Cir. 2008). 

There was also other circumstantial evidence, including the use of petitioner’s truck in the

robbery and the presence of broken glass (the window of his truck was broken by police officers

during the post-robbery stop of that vehicle) in his pocket. He has offered alternative

explanations for these facts and he called alibi witnesses at trial, but the jury chose not to credit

his explanations. His argument that the same person who took his truck “very well could have

been responsible for the robbery” and that Ms. Richardson’s statement that the light-skinned

robber reminded her of someone in the restaurant earlier that day (who turned out to be a

gentleman named Rogers) demonstrate that his attack, in legal terms, is not on the sufficiency of

the evidence that he was the perpetrator, but on the jury’s or the investigating officers’ failure to

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adopt a different plausible theory of who committed the crime. Again, given how difficult it is

to overturn a conviction on this ground when raised as part of a habeas petition, the Court cannot

base a favorable decision on these types of arguments. It must be abundantly clear, for petitioner

to prevail on his sufficiency of the evidence claim, that no rational juror could have believed the

eyewitness testimony nor reasonably inferred from the circumstantial evidence that petitioner

was the lighter-skinned robber, and that the state court’s contrary conclusion is itself

unreasonable. That does not describe the record here.

 IV. DECISION

Based on the reasons stated by the Court in its Opinion and Order, the Court ADOPTS

the recommendation of the Magistrate Judge and OVERRULES petitioner’s objections. The

petition for a writ of habeas corpus is DENIED and this case is DISMISSED.

IT IS SO ORDERED.

DATED: June 24, 2013 s/Algenon L. Marbley 

 Algenon L. Marbley

 United States District Judge

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