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. 

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, the exhibits attached to the return, and petitioner’s traverse. 

 For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner’s

claims be DISMISSED.

 I. PROCEDURAL HISTORY

On September 28, 2009, a Franklin County, Ohio grand jury indicted petitioner

on fourteen felony counts: four kidnaping counts, three aggravated robbery counts, six

robbery counts, and one count of having a weapon while under a disability. The

offenses allegedly occurred on December 10, 2008, and involved the robbery of a

Donato’s Pizza restaurant. Return of Writ, Exhibit One. 

Petitioner pleaded not guilty and was tried by a jury. On June 24, 2009, the jury

convicted him of one count of aggravated robbery (with a firearm specification) and the

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trial judge found him guilty of the weapons offense. In a judgment entry filed on July

29, 2009, the trial judge sentenced petitioner to nine years in prison on the robbery

count, an additional three years for the firearm specification, and two years on the

weapons count, for a total of fourteen years of imprisonment. Return of Writ, Exhibit

Three.

Petitioner timely appealed his conviction to the Court of Appeals for the Tenth

Appellate District. He raised two assignment of error, as follows:

STATEMENT OF ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND

DEPRIVED DEFENDANT-APPELLANT OF DUE PROCESS OF LAW BY

ENTERING A JUDGMENT OF CONVICTION AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. 

(Record reference: Appendix, Judgment Entry)

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

PREJUDICIAL ERROR BY ADMITTING EVIDENCE OF AN

UNRELIABLE IDENTIFICATION BASED UPON AN UNNECESSARILY

SUGGESTIVE METHOD OF PRESENTING A PHOTO ARRAY. (Record

reference: Transcript Vol. I, pp. 89-90).

. 

Return of Writ, Exhibit Five. In a decision dated August 3, 2010, the Tenth District Court

of Appeals overruled his two assignments of error and affirmed petitioner’s conviction. 

State v. Poulson, 2010 WL 3011081 (Franklin Co. App. Aug. 3, 2010); Return of Writ,

Exhibit Seven. Petitioner timely sought review by the Ohio Supreme Court, but that

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court dismissed his appeal as not involving any substantial constitutional question. 

State v. Poulson, 127 Ohio St.3d 1463 (Dec. 15, 2010); Return of Writ, Exhibit Eleven.

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

corpus in this Court. In his petition, he raised the following grounds for relief, stated

here exactly as they appear in the petition:

Ground One: The trial court committed reversible error and deprived

defendant/appellant of the due process of law by entering a judgment of

conviction against the manifest weight of the evidence and contrary to

law. 

Ground Two: The trial court abused it (sic) discretion and committed

prejudicial error by admitting evidence of an unreliable identification

based upon an unnecessarily suggestive method of presenting photo

array.

It is respondent’s position that the first claim was procedurally defaulted, and that both

claims lack merit.

II. FACTS

The facts of the underlying offense are stated in the state court of appeals’

opinion. Although, as will be discussed later, petitioner disagrees with that statement

of facts and contends that this Court is not bound to accept the statement as accurate,

the Court will set forth the facts as the state appellate court found them. Whether there

is some inaccuracy in its recital of the facts that may be material to either or both of

petitioner’s claims is a question which will be reserved for further discussion if

necessary.

This is how the state court of appeals described what happened on December 10,

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2008, which led to the filing of charges against petitioner:

On the evening of December 10, 2008, Mark Kipple (“Kipple”), was on his

way out of a Donatos Pizza, located at 2922 Noe-Bixby Road, in the city of

Columbus, to deliver pizzas when he encountered two men. Kipple later

testified that one of the men had a gun, and it was this man that pushed

him and Mary Call (“Call”), also a Donatos' employee, into the back room

and searched him. This man was later identified as appellant.

{¶ 4} During his testimony, Kipple described the man who forced him into

the back room as a tall, older white gentleman with a blue bandanna and a

scruffy beard, but later described him as “the whiter gentleman.” (Tr. 43.)

Kipple testified that the man had a gun pointed at him and he “felt

threatened.” (Tr. 39.) The second man, Kipple testified, was a “colored

gentleman” around the age of 59. (Tr. 40.)

{¶ 5} Call testified that two men came in with guns and someone said “this

is a robbery, no joking.” (Tr. 58.) Then she was pushed into the back room

and searched by a man wearing a blue and white mask, whose skin was

“not white.” (Tr. 60.) When asked, Call could not swear that his skin was

real dark, just that “it was not white like my skin.” (Tr. 60.)

{¶ 6} Michael Dean Harrison (“Harrison”), another employee of Donatos,

was also ordered to the back room by a man with a gun, but Harrison

walked into the back room and exited the building out of a back door, ran

to a nearby home and called 911 to report the robbery. The 911 call was

received at 8:25 p.m. Harrison testified that, after making the call, he

walked back to the store and saw two men carrying a pizza bag run out of

Donatos, get into a white pickup truck, and head north on Noe-Bixby Road

without turning on the headlights. He testified that he was scared and that

he would not be able to make an identification since he did not get a good

look at either of the men.

{¶ 7} Donatos' employee Courtney Gomez (“Gomez”), was not initially

taken into the back room with the others but was first asked to get the

money out of the registers. She testified that both men had guns, and that,

while both men appeared to be black males, the man who went into the

back room with the other employees had lighter skin than the man who

stayed up front with her.

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{¶ 8}Keri Richardson (“Richardson”), another employee of Donatos,

testified that she was taken into the back room with a gun to her head

where she, Kipple, and Call were all searched. She further testified that the

two men were masked, but she got a good look at the suspect who took her

into the back room. Richardson testified that, while Kipple and Call had

their heads down, she looked him straight in the eyes. Richardson testified

that she was able to see the area under his eyes and above his eyebrows

and that “he was light-skinned, at least mixed * * * like light black” with a

little bit of gray in his eyebrows. (Tr. 113.) Richardson also testified that the

man was pointing a gun at her and said “I'm not gonna shoot you,” to

which she replied, “You need to quit pointing the gun at us.” (Tr. 99.)

State v. Poulson, supra, at *1-2. The state court then recited in detail the circumstances

leading up to petitioner’s identification and arrest. Because his second ground for relief

deals with the circumstances of his identification by Keri Richardson, the Court defers

further discussion of that issue here. It suffices to say, to round out the factual events

leading to petitioner’s being indicted, that Ms. Richardson did identify him from a

photo array; that his truck was stopped by police shortly after the robbery; that police

officers saw two men inside the truck who matched the description of the robbers, but

before they could arrest them, the truck sped away (but not until after the officers broke

the window on the driver’s side); that when the truck was recovered, it had a broken

window as well as pizza sauce, cheese and toppings inside; and that a toboggan mask,

work gloves bearing petitioner’s DNA, and tools were also found in the truck. 

Petitioner also had window glass in his pocket when he was brought in for questioning. 

For his part, petitioner produced an alibi witness who said that petitioner was at his

home during the time of the robbery.

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III. PROCEDURAL DEFAULT

Respondent concedes that petitioner’s second ground for relief was properly

presented to the state courts. However, respondent argues that ground one, to the

extent that it is a manifest weight of the evidence claim, is not cognizable in federal

habeas corpus because that claim arises solely under Ohio law, and that to the extent

petitioner intended to challenge the sufficiency of the evidence supporting his

conviction as a violation of the Due Process Clause of the United States Constitution, he

cannot do so because he never made that argument to the state courts.

In recognition of the equal obligation of the state courts to protect the

constitutional rights of criminal defendants, and in order to prevent needless friction

between the state and federal courts, a state criminal defendant with federal

constitutional claims is required fairly to present those claims to the highest court of the

state for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an avenue

open to him by which he may present the claims, his petition is subject to dismissal for

failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per

curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default,

the petitioner can no longer present his claims to a state court, he has also waived them

for purposes of federal habeas review unless he can demonstrate cause for the

procedural default and actual prejudice resulting from the alleged constitutional error.

Murray v. Carrier, 447 U.S. 478, 485 (1986); Engle v. Issac, 456 U.S. 107, 129 (1982);

Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

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In the Sixth Circuit, a four-part analysis must be undertaken when the state

argues that a federal habeas claim is precluded by the petitioner's failure to observe a

state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court

must determine that there is a state procedural rule that is applicable to the petitioner's

claim and that the petitioner failed to comply with the rule.” Id. Second, the Court must

determine whether the state courts actually enforced the state procedural sanction. Id.

Third, it must be decided whether the state procedural forfeiture is an adequate and

independent state ground on which the state can rely to foreclose review of a federal

constitutional claim. Id. Finally, if the Court has determined that a state procedural rule

was not complied with and that the rule was an adequate and independent state

ground, then the petitioner is required to demonstrate that there was cause for him not

to follow the procedural rule and that he was actually prejudiced by the alleged

constitutional error. Id. This “cause and prejudice” analysis also applies to failure to

raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94

(6th Cir.1985).

The parties disagree about only one aspect of procedural default: whether

petitioner’s first assignment of error in state court, which is in all respects identical to

his first ground for relief in his habeas corpus petition, encompassed a claim that the

evidence was constitutionally insufficient to support his conviction. The state court of

appeals appears to have discussed the issue solely in terms of Ohio law, but that is not

dispositive; the question is whether, in his appellate briefing, petitioner fairly alerted

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the state court that he was challenging the sufficiency of the evidence underlying his

conviction. See generally Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987) (state court’s

failure to discuss a claim which had been properly presented “did not undermine the

exhausted nature of the claim”).

Although the language used in petitioner’s first assignment of error suggests that

he was raising only a manifest weight of the evidence challenge, he began the argument

section of his appellate brief in this way: 

The Defendant was convicted of Aggravated Robbery with a gun and

Weapon Under Disability. He was sentenced to 14 years in prison. In

order to convict the Defendant of those crimes, the burden is upon the

prosecution to establish every element of an offense beyond a reasonable

doubt. In re Winship (1970), 397 U.S. 358. The presumption of innocence

of the defendant must be maintained until overthrown by proof that

excludes every reasonable doubt of guilt.

Brief of Defendant-Appellant, Return of Writ, Exhibit Five, at 9. After a brief citation to

cases which permit Ohio courts to order a new trial on the ground that a conviction is

against the manifest weight of the evidence even if there is sufficient evidence to

support the conviction, petitioner argued: “In the case at hand, the evidence did not

prove beyond a reasonable doubt that the Defendant Lowell Poulson was the individual

who entered a Donatos Pizza shop with a second individual on December 10, 2008,

brandished a gun, and left with money.” Id. at 10.

In re Winship is not a case which deals with convictions being against the

manifest weight of the evidence. Rather, it dealt with the quantum of proof needed in a

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juvenile adjudicatory proceeding. In holding that there was no difference in the amount

of proof required in either an adult criminal case or a juvenile case where a minor is

found to have violated the criminal law, the Supreme Court made this statement: “Lest

there remain any doubt about the constitutional stature of the reasonable-doubt

standard, we explicitly hold that the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship, 397 U.S. at 364. In Jackson

v. Virginia, 443 U.S. 307 (1979), the case in which the Supreme Court set out the standard

to be used when a habeas corpus petition challenged the sufficiency of the evidence

underlying a state court conviction, the Court explicitly adopted Winship’s formulation

of the standard, stating that “[a]fter Winship the critical inquiry on review of the

sufficiency of the evidence to support a criminal conviction must be not simply to

determine whether the jury was properly instructed, but to determine whether the

record evidence could reasonably support a finding of guilt beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. at 318. 

By citing to In re Winship and explicitly arguing that the prosecution did not

establish every element of petitioner’s guilt beyond a reasonable doubt, petitioner

clearly invoked his constitutional right not to be convicted in violation of the Due

Process Clause. It is worth noting that in his memorandum in support of jurisdiction

filed with the Ohio Supreme Court, he made the same argument, asserting that “[t]he

State was able to obtain a conviction without satisfying the Constitutional standard of

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establishing guilt beyond a reasonable doubt ....” Return of Writ, Exhibit Nine. That is

enough to save his first ground for relief from procedural default. See also Hughes v.

Warden, Chillicothe Correctional Inst., 2011 WL 1980037 (S.D. Ohio Apr. 27, 2011), adopted

and affirmed 2011 WL 1979667 (S.D. Ohio May 20, 2011)(following the unreported Court

of Appeals decision in Nash v. Eberlin, 358 Fed. Appx. 761 (6th Cir. 2007) and finding

that a manifest weight of the evidence claim made in state court necessarily implies a

challenge the constitutional sufficiency of the evidence). The Court will therefore

resolve both of petitioner’s grounds for relief on their merits.

IV. GROUND TWO - SUGGESTIVE IDENTIFICATION

Because petitioner’s second ground for relief challenges the admissibility of one

of the eyewitness identifications, and because, if that identification were disallowed, it

would affect what evidence the Court must consider when deciding if the jury’s guilty

verdict was properly supported, the Court will address the identification issue first. 

Both issues, however, are subject to the deferential standard of review found in the

Antiterrorism and Effective Death Penalty Act (AEDPA), explained as follows.

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 (1997), and "demands that

state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19,

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24 (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 claim-

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

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

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

facts in light of the evidence presented in the State court proceeding

In applying this statute, the Supreme Court has held that “[t]he focus . . . is on

whether the state court's application of clearly established federal law is objectively

unreasonable . . . an unreasonable application is different from an incorrect one.” Bell v.

Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a petitioner must show the

state court’s decision was “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Bobby v. Dixon, 132 S.Ct. 261, **1 (2011), quoting Harrington v. Richter, 562

U.S. ––––, ––––, 131 S.Ct. 770, 786–87 (2011). This bar is “difficult to meet” because

“habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice

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systems,’ not a substitute for ordinary error correction through appeal.” Harrington v.

Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens,

J., concurring in judgment)). In short, “[a] state court's determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on

the correctness of the state court's decision.” Id., quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004).

In his petition and again in his traverse, petitioner attacks the admissibility of

evidence that one of the victims of the robbery and hostage-taking, Keri Richardson,

selected his photograph out of a photo array presented to her by police detective

Michael Longworth. The identification was made within days of the incident, and was

preceded by Ms. Richardson’s statement, made on the evening of the robbery, that she

would be able to identify the man who held her hostage at gunpoint. According to

petitioner, Ms. Richardson based her identification on the fact that she had been able to

look directly into the eyes of the robber, who was wearing a mask, and that he had

grayish eyebrows and pretty eyes. But, according to petitioner, there is no gray in his

eyebrows. Further, he argues Ms. Richardson had an opportunity to view the suspect

for only eleven seconds, and that the photo array shown to her included only one

person - petitioner - who matched the description of the suspect. He also argues that it

was improper for his counsel not to be present during the photo array and that a

statement (called a “Viewer Witness Statement”) was not read to Ms. Richardson until

after she had selected his photograph from the array. Consequently, he contends that

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under the appropriate legal test, her testimony should have been excluded.

These are not quite the same arguments which were made in petitioner’s

appellate brief, although those arguments are included here. In that document,

petitioner objected primarily to the fact that although several witnesses identified one of

the robbers as either light-skinned or white (petitioner is not white), only one of the

photos in the array showed a light-skinned individual. His counsel also suggested that

because Detective Longworth knew that petitioner’s truck was associated with the

robbery, he could have suggested in some non-verbal way to Ms. Richardson which

picture he wanted her to select; that his picture should not have been placed in the

center position on the top row of the array; and that her identification was unreliable

because none of the other witnesses was able to identify him.

 The state court of appeals described the facts relating to this claim in the

following way:

Detective Longworth testified that he met with Richardson on December

15, 2008 and presented her with a photo array of six photos. He testified

that he followed correct photo array procedures and had Richardson sign

the photo array procedure form. Detective Longworth testified that he did

not suggest to her in any way who to pick, nor did he tell her that she was

required to pick anyone out of the array. Detective Longworth further

testified that Richardson picked the photograph of appellant and made a

signed handwritten statement attesting to the fact that she was “100

percent positive number two [was] the guy that held us in the back of the

store.” (Tr. 232.) On cross-examination, Detective Longworth

acknowledged that appellant was the lightest skin-toned individual in the

photo array and that he had discretion as to which photos were placed in

the array, but that everyone in the photo array had been randomly

suggested by the computer as possible matches to the suspect's

descriptions. Detective Longworth testified that he presented the same

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photo array to Call and Harrison, but neither of them were able to make

an identification.

State v. Poulson, supra, at *3. The court of appeals then resolved petitioner’s second

assignment of error by holding that

The admission or exclusion of evidence is generally left to the discretion of

the trial court. State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768.

Unreliable identification testimony is excludable under the Due Process

Clause of the United States Constitution. In the context of eyewitness

identification testimony, “it is the likelihood of misidentification which

violates a defendant's right to due process.” Neil v. Biggers (1972), 409 U.S.

188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401. The critical inquiry is “whether

under the ‘totality of the circumstances' the identification was reliable.” Id.

The factors to be considered in determining whether identification

testimony is reliable are set out by the United States Supreme Court in

Neil. These include 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. The

corrupting effect of any suggestive identification procedure must then be

weighed against these factors. Manson v. Brathwaite (1977), 432 U.S. 98,

114-16, 97 S.Ct. 2243, 2253-54, 53 L.Ed.2d 140.

{¶ 42} We now apply the foregoing to the facts of our case. Regarding the

opportunity of the witness to view the criminal at the time of the crime,

Richardson was taken by one of the robbers into the back room where

they were in close proximity of each other for an extended period of time.

In 2003, this court found that the three or four minutes that robbers were

in a floral shop was considered an extended period of time, adequate

enough for the shop owner to view and later identify the robbers. State v.

Payne, 10th Dist. No. 02AP-723, 2003-Ohio-4891. Here, the robbers were in

the store and in the back room for at least that amount of time since one of

the Donatos employees had time to escape out the back door to call 911

from a nearby home and walk back to the store to see the two men leaving

the store.

{¶ 43} Regarding the witness's degree of attention, Richardson testified

that she got a good look at the robber, who took her at gunpoint to the

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back of the room. She testified that she looked directly into the robber's

eyes and was able to see areas of his face and skin tone despite the mask

he wore.

{¶ 44} With respect to the accuracy of her prior description of the criminal,

Richardson testified that she spoke to Detective Longworth right after the

incident and told him that the robber in the back room was light-skinned

and that she would be able to recognize him by his eyes. Appellant, a

black male, is of lighter skin than the second robber.

{¶ 45} As for the level of certainty demonstrated at the confrontation,

Richardson testified that, when presented with the photo array, she

immediately recognized appellant in the photo array with 100 percent

certainty and made a signed handwritten statement to that effect.

{¶ 46} Regarding the time between the crime and the confrontation,

immediately after the crime, Richardson made a statement to police as to

appellant's appearance and that she would be able to recognize him. Five

days later, on December 15, 2008, Richardson identified appellant in the

photo array. In State v. Horton, 10th Dist. No. 06AP-311, 2007-Ohio-4309,

this court did not find a photo array identification made almost two

months after the crime to be unreliable. Thus, in our case, five days is

more than adequate.

{¶ 47} Finally, the corrupting effect of any suggestive identification

procedure must then be weighed against these factors. We find that the

identification procedure in this case was not suggestive. The photo array

was computer-generated, where the six photos were randomly suggested

as possible matches to the suspect's descriptions. Although Detective

Longworth acknowledged that appellant was the lightest skin-toned

individual in the array, the other five photographs were all reasonably

close in appearance to appellant's photograph. The photo of appellant did

not stand out from all of the photos so as to be unnecessarily suggestive.

Additionally, Detective Longworth followed correct photo array

procedures. The photos were arranged in no particular order of

importance, and it was never suggested to Richardson that she was

required to pick someone from the photo array. Further, Richardson filled

out the procedure forms and signed a handwritten statement identifying

appellant's photo.

{¶ 48} Because neither the photo array itself, nor the procedure used by

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the police detective were impermissibly suggestive and because, under

the totality of the circumstances, Richardson's identification testimony

was reliable, we find that the trial court did not abuse its discretion and

commit prejudicial error by admitting the evidence of the photo array

identification. Appellant's second assignment of error is overruled.

State v. Poulson, supra, at *8-10.

This Court has previously explained the legal standard under which claims of

suggestive identification procedures are evaluated:

Identification testimony based upon a pre-trial procedure that is so

“impermissibly suggestive as to give rise to a very substantial likelihood

of irreparable misidentification” violates a criminal defendant's right to

due process. Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986), quoting

Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247

(1968); see also Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199

(1967). “It is the likelihood of misidentification which violates a

defendant's right to due process.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct.

375, 34 L.Ed.2d 401 (1972). The Court first must determine whether the

pre-trial identification procedure employed was unduly suggestive.

Ledbetter v. Edwards, 35 F.3d 1062, 1070-1071 (6th Cir.1994). If so, the Court

must then consider the totality of the circumstances in order to determine

if the identification is nevertheless reliable. Id., at 1070, citing United States

v. Hill, 967 F.2d 226, 230 (6th Cir.1992); Neil v. Biggers, supra, 409 U.S. at

199-200; Thigpen v. Cory, supra, 804 F.2d at 895. In making this

determination, the Court must consider the following five factors:

(1) the opportunity of the witness to view the criminal at the

time of the crime; (2) the witness's degree of attention at the

time of observation; (3) the accuracy of the witness's prior

description of the criminal; (4) the level of certainty

demonstrated by the witness when confronting the

defendant; and (5) the length of time between the crime and

the confrontation.

Ledbetter v. Edwards, supra, 35 F.3d at 1070, citing Manson v. Brathwaite, 432

U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, supra, 409

U.S. at 199-200.

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Payne v. Bobby, 2006 WL 508784, *13-14 (S.D. Ohio Feb. 27, 2006), adopted and affirmed

2006 WL 2583380 (S.D. Ohio Sept. 6, 2006); see also Mills v. Cason, 572 F.3d 246 (6th Cir.

2009). Clearly, the state court of appeals followed this same method of analysis and

cited to many of the same cases. The only way that petitioner can obtain relief on this

claim is to persuade this Court that the state appellate court’s application of the correct

legal standard was objectively unreasonable based on the facts of this particular case.

Addressing the first step of the required two-step inquiry, petitioner contends

that the photo array procedure used by Detective Longworth was impermissibly

suggestive. He bases that argument on the fact that the photo array included only one

light-skinned individual (himself), that his picture appeared in the middle of the top

row, that Ms. Richardson was not read the Viewer Witness Statement before she picked

out his photo, and that because Detective Longworth knew which picture depicted a

suspect, he may have subconsciously provided cues to Ms. Richardson as to which

picture to select.

The state court of appeals found, however, that the identification procedure was

not suggestive. That finding was based on the evidence in the record that the array was

computer-generated and that the other photographs were reasonably close in

appearance to petitioner’s, although he was the lightest-skinned individual in the array. 

The court of appeals also found, as a fact, that petitioner’s photograph did not stand out

from the others and that correct procedures were followed. To the extent that these

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represent factual findings made by the state court, this Court is bound to accept them

unless those findings are “unreasonable ... in light of the evidence presented in the State

court proceeding.” 28 U.S.C. §2254(d)(2). Given the fact that the record contains

absolutely no evidence of any improper or suggestive conduct on the part of Detective

Longworth, either in his or Ms. Richardson’s testimony, that part of the state court’s

factual finding cannot be disturbed here. 

It is true, as petitioner argues, that the photo array was not completely computergenerated as suggested by the state court. Detective Longworth testified that although

the computer provided him with a number of photographs based on information about

the suspect, he made the final selection of the other five pictures. He also

acknowledged that the other people whose photos were selected were “quite a bit

darker” than petitioner, and that all of them were African-American notwithstanding at

least one of the witness’ statements that one of the two robbers might have been white. 

There is no dispute that petitioner’s picture was in the center of the top row. The actual

photo array is an exhibit before this Court, and petitioner is clearly the lightest-skinned

person in the array, although there is a good deal of similarity among the photos with

respect to other facial characteristics. But none of these factors, even if there is some

minor difference between the evidence in the record and the state court’s recitation of

the facts, indicate that the procedure of assembling and displaying the photo array was

unduly suggestive, or that the state court’s finding on this issue was unreasonable. The

record also shows that Ms. Richardson was shown another photo array first and that

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she did not select anyone’s photo from that array as having been involved in the

robbery, so that she was not simply given one array and told to pick out the suspect. 

This is simply not a case where the evidence, even as petitioner interprets it,

leads inescapably to the conclusion that the identification procedure followed by

Detective Richardson was unduly suggestive. It did not, for example, involve a “police

attempt to emphasize the photograph of a given suspect,” see United States v. Lawrence,

349 F.3d 109, 115 (3d Cir. 2003), nor is it a case where “the police informed [Ms.

Richardson] prior to her identification of the appellant that they had a suspect.” See

Grubbs v. Hannigan, 982 f.2d 1483, 1490 (10th Cir. 1993). As the Grubbs court also noted,

“a photo-lineup is not necessarily suggestive merely because the individuals in the

lineup differ in facial characteristics” unless the differences are “strikingly apparent” or

relate to some “important component” of the witness’s description of the subject, such

as hair style. Id. So long as the array itself does not emphasize the suspect’s photo over

any of the others, it is not unduly suggestive merely because there are differences - even

fairly significant ones - between the suspect’s photos and the others. See, e.g, McGowan

v. Miller, 109 F.3d 1168 (7th Cir. 1997)(upholding state court’s determination that a photo

array was not unduly suggestive even though four of the six photos were of men much

younger than the defendant). Given the state of federal law on this subject, the state

court did not unreasonably determine that the photo array was not unduly suggestive. 

That being so, it is not strictly necessary to engage in the second step of the analysis,

which focuses on factors which may allow even a suggestive identification process to be

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presented to the jury if the totality of the circumstances show that the identification was

reliable.

Even if the state court erred in finding that the photo array was not unduly

suggestive, it reasonably applied the five-factor test from Neil v. Biggers in determining

that Ms. Richardson’s identification of petitioner was admissible. That court resolved

each of the five factors in favor of admissibility. It found - and there is support in the

record for this finding despite petitioner’s argument to the contrary - that Ms.

Richardson had two or three minutes to observe the suspect. She so testified, and the

timeline provided by Mr. Harrison, who had gone to the neighbors and called the police

(and whose estimate of how much time it took him to do so is relied on by petitioner in

making his “eleven seconds” argument) does not directly contradict her testimony. Ms

Richardson did testify, as the court of appeals stated, that she had a very good

opportunity to observe that portion of the suspect’s face which was visible above his

mask and below his hood, and she immediately told the police she could identify him. 

She did so five days later, expressing one hundred percent certainty about that

identification. These are all facts supported by the record, and none of them undercut

the reliability of her identification.

To be sure, there are other facts as well which are pertinent to the credibility of

her testimony. It is fairly well-accepted that eyewitness testimony can be mistaken. 

There are minor discrepancies between her description of the suspect and his actual

appearance, although she did not really say that he had bushy gray eyebrows; rather,

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she testified that she told Detective Longworth that the suspect’s “eyebrows had like a

grayish color in it. I know it was darker, yes.” (Trial Transcript, at 85). There are the

issues described above about the photo array. And there is the fact that none of the

other witnesses were able to identify petitioner and that he presented alibi testimony.

But all of those factors do not mandate a finding that her identification of petitioner was

so unreliable as to be inadmissible. Once the court makes an initial finding of

admissibility, as the trial court did here - and, in this Court’s view, did so in a “not

unreasonable” fashion - the weight to give such testimony becomes an issue for the

jury. See, e.g., United States v. Ford, 72 Fed. Appx. 342, *5 (6th Cir. August 1, 2003)(such

arguments go “to the weight of the evidence, not its admissibility”). The Court

therefore finds petitioner second ground for relief to be without merit.

V. GROUND ONE - SUFFICIENCY OF THE EVIDENCE

Petitioner’s other argument is that the evidence was constitutionally insufficient

to support the jury’s verdict. As discussed above, the state court of appeals did not

directly address this issue, but confined itself to the question of whether the conviction

was against the manifest weight of the evidence. However, a conviction cannot be

upheld under that standard unless there was also constitutionally sufficient evidence to

support the conviction. See Nash v. Eberlin, 358 Fed. Appx. 761 (6th Cir. 2007). The

Court therefore reviews this claim under the AEDPA standard.

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

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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 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

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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 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)).

Much of petitioner’s argument about the sufficiency of the evidence relates to

Ms. Richardson’s identification of him as one of the two robbers. Because the Court has

determined that the jury was properly permitted to hear her testimony, the Court’s

analysis of the sufficiency of the evidence includes the fact that there was an eyewitness

who placed petitioner at the scene with a firearm in his hand. Petitioner also makes

much of the fact that no other witnesses were able to identify him and that he provided

the police with a statement explaining his whereabouts on the night in question which

was subsequently corroborated by an alibi witness. He also argues that police

fabricated certain testimony, particularly the statement that, initially, he denied

knowing how glass from the truck window ended up in his pocket. He claims to have

picked up the glass the following day, and his mother testified in support of that claim.

Petitioner’s arguments incorrectly focus on evidence of his innocence. The

question before the Court when reviewing a jury verdict for sufficiency of the evidence

is not on whether the defendant presented evidence which, if believed, would have

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supported a not guilty verdict, or even whether the defendant’s evidence was stronger

than the prosecution’s. Those are determinations left to the jury. The Court’s focus

must be on the evidence which would support a finding of guilt; the Court may not

“reweigh the evidence or redetermine the credibility of the witnesses whose demeanor

has been observed by the trial court” because the “assessment of the credibility of

witnesses is generally beyond the scope of federal habeas review of sufficiency of

evidence claim.” Matthews v. Abramajtys, 319 F.3d at 788. As this Court has said, “[a]

sufficiency of evidence review, for purposes of federal habeas relief, does not focus on

whether the trier of fact made the correct guilt or innocence determination, but rather

on whether it made a rational decision to convict or acquit.” Benge v. Johnson, 312

F.Supp.2d 978, 1000 (S.D. Ohio 2004). 

Looking at the evidence in the light most favorable to the prosecution, a rational

jury could have reached these conclusions. First, petitioner’s truck was used in the

robbery. Second, one of the two robbers observed by all of the victims, and by the

police officers who stopped the truck, generally matched petitioner’s physical

description, including the fact that one robber was a lighter-skinned African-American

male. Third, DNA taken from the ski mask found in petitioner’s truck belonged to a

long-time friend of petitioner’s, Anthony Williams. Fourth, Keri Richardson identified

petitioner as the man who held her at gunpoint. Fifth, broken glass - apparently from

the truck window broken out by the police officers - was found in petitioner’s pocket. 

The existence of an alternate explanation for some of these facts does not mean that the

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jury was not entitled to reject that explanation and draw the inference that petitioner

was guilty. In fact, it is likely that even without the other corroborating evidence which

was present in this case, Ms. Richardson’s identification of petitioner would have been

enough evidence for the jury to convict. As another court has said, “[t]he fact that no

physical evidence linked [the defendant] to the scene is not dispositive of whether [he]

was at the scene.” See Hilliard v. Hudson, 599 F.Supp.2d 921, 932 (N.D. Ohio 2009)

(rejecting a claim that the evidence was insufficient to support a conviction because,

while physical evidence was lacking, eyewitness testimony placed the defendant at the

scene of the crime); see also 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)(“even the testimony of a single, uncorroborated

prosecuting witness or other eyewitness is generally sufficient to support a conviction

...”), citing Brown v. Davis, 752 F.2d 1142 (6th Cir. 1985).

Brown v. Davis is particularly instructive. There, as the Court of Appeals noted,

the defendant had been convicted of rape almost exclusively on the testimony of one

eyewitness, whose credibility was substantially undercut by the fact that she knew the

person she eventually named as her attacker but she did not provide his name to police

when first questioned and that she had given another name to police before ultimately

identifying the defendant as her assailant. Also, as the Court noted, “it may seem

foolhardy and irrational for an undisguised man who is well known by the victim to

attack her in a lighted room ....” Id. at 1147. The Court also noted the studies showing

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that eyewitness identifications can be unreliable and stated that it was “painfully aware

of miscarriages of justice caused by wrongful identification.” Id. at 1146. Nevertheless,

because the only question before the Court was the constitutional sufficiency of the

evidence, and because the jury could rationally have believed the victim’s testimony,

the Court denied relief, stating that “[t]he defense had every opportunity to

cross-examine and impeach the victim's credibility. The issue of credibility, the

demeanor of the parties, and the weighing of the evidence were properly for the jury.” 

Id. at 1147. Because that question - and not “whether [the reviewing court] believes the

evidence at the state trial established guilt beyond a reasonable doubt” - is the crux of

the sufficiency of the evidence inquiry, the petitioner’s claim was foreclosed. Id. 

The same is true here. A rational jury could have believed the direct and

circumstantial evidence presented at trial and, from that evidence, could have found

petitioner guilty beyond a reasonable doubt. That is what the jury did, and this Court

cannot second-guess that decision because there was enough evidence to support it. 

Petitioner’s second claim is therefore without merit.

 VI. RECOMMENDED DISPOSITION

For all the foregoing reasons, the Magistrate Judge RECOMMENDS that the

petition for a writ of habeas corpus be DISMISSED. 

VII. 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

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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 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

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