IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL L. HAAS , CASE NO. 2:13-cv-0031

Petitioner, JUDGE PETER C. ECONOMUS

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, and the exhibits attached to the return. For the reasons that

follow, the Magistrate Judge RECOMMENDS that petitioner’s claims be DISMISSED.

 I. PROCEDURAL HISTORY

On December 1, 2008, a Franklin County, Ohio grand jury returned a twenty-five

count indictment charging various individuals with crimes such as receiving stolen

property, safecracking, breaking and entering, burglary, theft, and possession of drugs. 

Petitioner was charged in count nine (breaking and entering), count ten (theft), counts

twelve, sixteen, and seventeen (burglary), counts eighteen and nineteen (theft), and

count twenty-one (safecracking). Return of Writ, Exhibit Three. 

Petitioner pleaded not guilty and was tried by a jury. On October 14, 2009, the

jury convicted him of all eight counts. In a judgment entry filed on December 17, 2009, 

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the trial judge sentenced petitioner to an aggregate of twenty years and six months in

prison, plus five years of mandatory post-release control. Return of Writ, Exhibit One.

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

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

1. THE JUDGMENTS OF CONVICTION ARE CONTRARY TO LAW

AND TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES IN

THAT THERE WAS INSUFFICIENT EVIDENCE ADDUCED TO

ESTABLISH EACH AND EVERY ELEMENT OF EACH OFFENSE

BEYOND A REASONABLE DOUBT.

2. THE JUDGMENT(S) OF CONVICTION ARE CONTRARY TO THE

WEIGHT OF THE EVIDENCE.

3. APPELLANT’S DUE PROCESS RIGHTS WERE VIOLATED WHEN

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT IN

VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

4. THE JUDGMENT OF CONVICTION IS CONTRARY TO LAW AND

TO THE SIXTH AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES IN THAT THE APPELLANT DID NOT RECEIVE

EFFECTIVE ASSISTANCE OF COUNSEL.

. 

Return of Writ, Exhibit Nine. In a decision dated June 2, 2011, the Tenth District Court of

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

Haas, 2011 WL 2175023 (Franklin Co. App. June 2, 2011). Petitioner did not timely

appeal that decision to the Ohio Supreme Court, but that court granted his motion to file

a delayed appeal. State v. Haas,129 Ohio St. 3d 1473 (2011). In his delayed appeal, he

raised the same four claims he had presented to the appellate court. Return of Writ,

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Exhibit 15. On January 18, 2012, the Supreme Court of Ohio declined to accept the case

for review. State v. Haas, 131 Ohio St.3d 1411 (2012).

On January 11, 2013, petitioner timely presented his petition for a writ of habeas

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

here exactly as they appear in the petition:

Ground One: The judgment of conviction are contrary to law and to the

Due process clause of the fourteenth amendment to the Constitution of the

United State in that there was insufficient evidence adduced to establish

each and every element of each offense beyond a reasonable doubt.

Ground Two: The judgment of conviction are contrary to the weight of

the evidence.

Ground Three: Appellant’s Due process rights were violated when the

state committed prosecutorial misconduct in violation of the fifth, sixth

and fourteenth amendments of the United State constitution.

Ground Four: The judgment of conviction is contrary to law and to the

sixth amendment to the constitution of the United State in that the

appellant did not receive effective assistance of counsel.

It is respondent’s position that petitioner’s second ground for relief raises a state law

claim which cannot be presented in federal habeas corpus, and that the remaining three

claims lack merit.

II. FACTS

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

opinion. This is how the state court of appeals described the events which led to the

filing of charges against petitioner:

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During the later part of 2007, Franklin County saw an unusually large

number of seemingly related burglaries. One occurred at a business named

Spinsect, which was located at 1520 Harmon Avenue, Suite 699 in

Columbus, Ohio. The burglary was discovered on December 3, 2007 when

the business owner, Matt Leukart, arrived for work. Upon his arrival, he

discovered that windows and doors had been broken and a crossbow, a

number of tools, a generator, and Christmas gifts had been taken. In total,

Mr. Leukart estimated his loss was approximately $10,000.

Another set of victims, Gary and Jan Wulf, left their residence located at

4117 Delancy Park Drive in Dublin, Ohio, for a vacation during the days of

December 12 through December 15, 2007. When they returned home, they

found that their front door had been kicked in and many items had been

taken, including: a white Lexus, a plasma television, a pair of binoculars, a

camera, two guns, a coin collection, checks, and $2,000 in cash. Their car

was recovered days later and had extensive damage.

On December 14, 2007, the residence of Bernard Helmick, located at 3001

Kropp Road in Grove City, Ohio, was the subject of a break-in. On that

date, Mr. Helmick was out-of-town, but his niece, Amanda Pennington,

was staying at his house. When she arrived home, she noticed a man there.

At approximately the same time, Mr. Helmick's ex-brother-in-law, Dale

Thum, was driving on Kropp Road. As he drove by Mr. Helmick's

residence, he noticed two men walking through a field near the house. He

believed this was unusual because nothing besides the house was in the

area. He also noticed two vehicles in the driveway; one was a red minivan.

Mr. Thum drove by the residence before deciding to turn around and

inquire further. Mr. Thum stopped and briefly searched through the house.

At that point, the red minivan had just left. It was clear that the front door

had been kicked in, and many items had been gathered in the kitchen

apparently in preparation to be taken. The items included coins, guns, and

a set of night-vision binoculars. He then drove after the red minivan to

attempt to retrieve its license plate number. During the ensuing chase, Mr.

Thum and the red minivan approached speeds of 100 miles per hour.

When the red minivan ran through the stop sign of a busy intersection, Mr.

Thum decided it was too dangerous to proceed.

The residence of Robert Talbott, located at 4252 Shire Cove in Hilliard,

Ohio, was the subject of a break-in on the night of December 20, 2007. That

night, Mr. Talbott left his residence at approximately 5:30 p.m. to attend a

Christmas party. When he returned home at approximately 3:00 a.m., he

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found that his home had been burglarized. He noticed muddy shoeprints

on his carpet and severe damage to his staircase. A collection of three or

four guns, including commemorative Army pistols and Colt .45s from

World War II were taken from a display case. Nearly all of his 25,000 Silver

Eagle coins, which were packaged in green cases from the United States

Mint and were valued at approximately $16 each, were taken from a closet.

A safe was taken from his master bedroom. The safe contained diamonds,

watches, silver bars, rare coins, and approximately $180,000 in cash. Mr.

Talbott estimated his total loss was approximately $2 million. Some of Mr.

Talbott's items were recovered in April 2009 from Kenneth Koon

(“Kenny”).

Also in late 2007, an ATM was taken from a recreational complex known as

“The Barn.” After having received a call from an individual who saw an

ATM in a dumpster, investigators recovered the ATM and noticed blood

on it. They analyzed the blood and linked it to Scott Keaveney (“Scott”).

Based upon the blood and other tips, Scott was arrested on December 22,

2007. On that date, he spoke to detectives and described in detail a series of

burglaries he had committed with James Richesson (“Jamie”), Aaron

Eiland (“Aaron”), Todd Fischer (“Todd”), Mark Mayle (“Mark”), Bruce

Manahan (“Bruce”), and appellant. At that point, he turned over a Cartier

watch that had been taken from the Shire Cove burglary. Scott also

indicated that Kenny purchased most of the stolen goods after the

burglaries.

On January 4, 2008, an arrest warrant was issued for appellant with regard

to the Spinsect property break-in. He voluntarily turned himself in on

January 7, 2008 and was released on bond the next day. On January 11,

2008, appellant waived his preliminary hearing and was bound over to the

Franklin County Court of Common Pleas for indictment. On February 25,

2008, the Franklin County Grand Jury issued a no bill.

On December 1, 2008, the Franklin County Grand Jury issued a 25 count

indictment. Eight counts pertained to appellant. Specifically, Count 9 of the

indictment charged appellant with breaking and entering, in violation of

R.C. 2911.13 and a felony of the fifth degree, Count 10 of the indictment

charged appellant with theft, in violation of R.C. 2913.02 and a felony of the

fourth degree, Counts 12, 16, and 17 of the indictment charged appellant

with 3 counts of burglary, in violation of R.C. 2911.12 and felonies of the

second degree, Count 18 of the indictment charged appellant with theft, in

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violation of R.C. 2913.02 and a felony of the first degree, Count 19 of the

indictment charged appellant with theft, in violation of R.C. 2913.02 and a

felony of the third degree, and Count 21 of the indictment charged

appellant with safecracking, in violation of R.C. 2911.31 and a felony of the

fourth degree.

State v. Haas, supra, at *1-2. 

III. GROUND TWO

Respondent argues that ground two, 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. Petitioner has not filed a traverse and has therefore not

responded to this argument.

This Court has consistently held that a claim that a jury’s verdict was against the

manifest weight of the evidence cannot be considered on its merits in an action for

habeas corpus relief filed under 28 U.S.C. §2254. That is because §2254 permits federal

courts to grant relief to a state prisoner only if there is a showing that the person is

being held in custody in violation of the Constitution or laws of the United States. 

Neither the Constitution nor the laws of the United States require reversal of a jury’s

verdict if it is against the manifest weight of the evidence; such a claim is based entirely

on Ohio law. As the Court explained in Norris v. Warden, NCI, 2010 WL 582623, *9-10

(S.D. Ohio Feb. 11, 2010), adopted and affirmed 2010 WL 883847 (S.D. Ohio Mar. 9, 2010),

Petitioner's contention ... that his convictions are against the manifest

weight of the evidence fails to present an issue appropriate for federal

habeas corpus review. The Due Process Clause does not provide relief for

defendants whose convictions are against the manifest weight of the

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evidence, but only for those who have been convicted without enough

proof to allow a rational trier of fact to find guilt beyond a reasonable

doubt. Walker v. Engle, 703 F.2d 959, 969 (6th Cir.1983).

[U]nder Ohio law, a claim that a verdict was against the manifest weight

of the evidence-as opposed to one based upon insufficient

evidence-requires the appellate court to act as a “thirteenth juror” and

review the entire record, weight the evidence, and consider the credibility

of witnesses to determine whether “the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1983); cf. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72

L.Ed.2d 652 (1982). Since a federal habeas court does not function as an

additional state appellate court, vested with the authority to conduct such

an exhaustive review, any claim that petitioner's conviction was against

the manifest weight of the evidence cannot be considered by this Court.

Ground Two should therefore be dismissed on this basis.

IV. GROUNDS ONE, THREE AND FOUR - MERITS REVIEW

Respondent concedes that grounds one, three and four were properly raised

before the Ohio courts and timely filed here. Respondent argues, however, that none of

the issues raised in those grounds for relief justify granting petitioner a writ of habeas

corpus. The Court reviews each of the three remaining claims under the legal standard

set out by Congress in 28 U.S.C. §2254(d).

A. LEGAL STANDARD

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 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008). 

AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh

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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, 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

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disagreement.” Bobby v. Dixon, 132 S.Ct. 26, 27 (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

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).

B. GROUND ONE - SUFFICIENCY OF THE EVIDENCE

Petitioner’s first claim is that the evidence was constitutionally insufficient to

support the jury’s verdict. 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 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

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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 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)).

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The state court of appeals addressed this claim on its merits. In doing so, it did not

specifically summarize the testimony given at trial, but rather noted and rejected

specific arguments made by petitioner, concluding that they all went to the credibility

of the witnesses and not to the sufficiency of the evidence given by those witnesses. 

The state court did, however, summarize the evidence as part of its discussion of

petitioner’s manifest weight of the evidence claim, describing the trial testimony this

way:

The evidence demonstrated that none of the subjects who committed the

crimes were apprehended on the premises. However, the break-ins and

burglaries clearly occurred. The record further reflects that appellant was

not arrested immediately after any of the burglaries. He had ample time to

rid himself of any incriminating evidence. Appellant's arguments in this

regard are unpersuasive. Finally, we address appellant's credibility

challenges.

During the trial, the state offered testimony from property owners, patrol

officers, evidence technicians, detectives, and fingerprint examiners about

the details of each crime scene, what property was taken from each, and

the evidence obtained from each. The state also offered testimony from

Jamie and Scott [James Richesson and Scott Keaveney, two of the others

involved in the string of burglaries] about what happened during each of

the four crimes at issue herein. The state also offered the testimony of Mr.

Thum, who had witnessed some of the events related to the Kropp Road

burglary.

The testimony showed that Jamie and Scott were involved in a series of 20

or more burglaries in late 2007. According to their testimony, different

groups of men were involved in different jobs. With regard to this case,

they testified about appellant's specific involvement in four of these jobs.

With respect to the Spinsect property, the testimony showed that Todd

[Todd Fischer, another involved party], Jamie, and appellant were riding

around in Jamie's red minivan and came upon Spinsect. They broke a

window at the business and then left. They retrieved appellant's car and

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came back to the Spinsect property. After noticing that no police

responded to the broken window, they broke down the door and took

tools, a bin of Christmas presents, and a crossbow. They took the items to

Mark's [Mark Mayle’s] house and sold them to Kenny [Kenneth Koon].

With respect to the Kropp Road property, the testimony showed that

Scott, Jamie, and appellant were again riding around in Jamie's red

minivan. Jamie parked the minivan in the driveway before he and Scott

kicked in the door. Appellant joined Jamie and Scott inside and began

gathering items to take. At that time, a woman pulled into the driveway.

Appellant and Scott fled through the back of the house and ran through a

field. Jamie began to flee, but then realized his minivan was still in the

driveway. He then went back and spoke with the woman. He told her that

he was driving by the house when he noticed two men burglarizing it, so

he stopped to check things out. He then told her that he would chase the

men down in his minivan. At that point, Jamie drove off and stopped to

pick up Scott and appellant. A black Dodge truck then began chasing

them. During the chase, the vehicles were driving at speeds in excess of

100 miles per hour. Jamie drove through stop signs and ignored other

traffic signals. The only item taken from the Kropp Road property was a

blue lockbox with around $50 in it. Based upon that which Mr. Thum

perceived, his testimony corroborated this recitation of the events.

With respect to the Delancy Park property, Scott and Jamie had noticed

packages on the front porch of the condo. The next night, Scott, Jamie and

appellant returned, and the packages were still there. Jamie broke down

the door with his shoulder, and the three men went inside. Scott found a

couple thousand dollars in cash, and appellant found two lockbox-type

safes. The men took those items and left. Jamie and Todd then returned

and took a few guns, a television, and a white Lexus.

With respect to the Shire Cove property, Scott had previously been inside

the house while performing work on it. As a result, he knew that there

was a Ferrari on display in the living room. The testimony showed that

Scott and Jamie drove by the house at around noon on December 20, 2007,

at which point Scott showed Jamie the Ferrari. Scott, Jamie, Bruce [Bruce

Manahan] and Todd drove by the house a second time at around 4:00 p.m.

The same four men returned at around 7:30 p.m. and noticed that a sliding

glass door in the back of the house was open. They then left to go to

Meijer to buy ski masks and gloves. Upon their return, they went inside

and broke into a closet where they found green cases with coins in them.

They took around 12 of the green cases and went to Mark's house, where

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they called Kenny. Shortly thereafter, Kenny and appellant arrived, and

Kenny paid $10,000 for the green cases of coins. He also informed the men

that he would purchase more of the cases if they went back to retrieve

them.

Scott then took appellant to get his car, and those two men returned to the

Shire Cove property. Jamie and Todd also returned to the property in

Jamie's minivan. Upon their return, Jamie, Todd, Scott and appellant

retrieved more of the green cases. They also found a few guns and took

those. They then found a safe in another bedroom and spent

approximately two hours getting it into the minivan. They returned to

Kenny's garage and spent approximately an hour and one-half trying to

open the safe with sledgehammers, grinders, and crowbars. When they

finally opened it, appellant, Scott, Todd, and Jamie all emptied the

contents of the safe into buckets. Scott and Aaron then took the emptied

safe and dumped it on the side of the road in a wooded area.

Upon receiving a tip, the safe was recovered a few days later.

Investigators found and retrieved a fingerprint from the recovered safe.

Analysis of the fingerprint indicated that it belonged to appellant.

State v. Haas, supra, at *5-6.

This Court’s independent review of the trial transcript, Doc. 9, confirms that this

is generally an accurate summary of the evidence. For example, on direct examination

Scott Keaveney testified about the Spinsect burglary, stating that appellant participated

by “gather[ing] up tools with Jamie and Todd and me.” (Tr. 395). Appellant received a

share of the proceeds from that burglary as well. (Tr. 397). Scott also testified that

appellant went into the Kropp Road property and helped locate and collect items to

steal. (Tr. 399). Only $50.00 was actually taken, but, again, appellant received a share. 

(Tr. 403). As to the Delancy Park residence, Scott identified appellant as one of the men

who went inside and found two lockboxes which they stole. (Tr. 406). Finally, he told

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the jury that after he and others took the first coin cases from the Talbott house, they

met with Kenneth Koon and appellant and Koon agreed to buy those coins and any

others they could get. Scott then took appellant to get his car and they went back to the

Talbott house, where they proceeded to steal other coins and the safe. (Tr. 420). 

Appellant helped put the safe into Jamie’s van (Tr. 427) and participated in the efforts to

get it open. (Tr. 432). He also took money from the safe. (Tr. 433). Jamie Richesson

corroborated significant portions of this testimony. (Tr. 477-520). 

The question raised by the petition is whether, given this evidence, the state

courts unreasonably determined that there was enough evidence to permit a jury to

find, beyond a reasonable doubt, that petitioner committed the crimes which the jury

convicted him of. This Court finds that the state court’s decision on the sufficiency of

the evidence question is not unreasonable, and is, in fact, a proper application of federal

law to the facts of this case.

The state court of appeals did not cite to any federal court decisions when it

analyzed petitioner’s sufficiency of the evidence claim. It did, however, rely on several

Ohio decisions, including State v. Thompkins, 78 Ohio St.3d 380 (1997). Thompkins, in turn,

cited to both Tibbs v. Florida and Jackson v. Virginia for the proposition that “a conviction

based on legally insufficient evidence constitutes a denial of due process.” State v.

Thompkins, supra, at 386-87. Thus, the state court of appeals identified the controlling legal

principle as set out by the United States Supreme Court.

Did it apply that principle properly? The answer is clearly yes. The testimony of

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the other participants in the burglaries for which petitioner was convicted identified him

as one of the people who entered the various residences or places of business and

committed theft offenses while there. A reasonable juror could have concluded, based on

that testimony, that petitioner was guilty. Although there was also one of his fingerprints

on the safe, which is corroborating physical evidence, in fact no additional corroboration

of their testimony was needed in order to satisfy the constitutional minimum; “[t]he fact

that no physical evidence linked [the defendant] to the scene is not dispositive of whether

[he] was at the scene.” Hilliard v. Hudson, 599 F.Supp.2d 921, 932 (N.D. Ohio 2009); 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 that

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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. The challenges which petitioner raised in his state court

appeal all went to the credibility of the witnesses against him, and not to the substance of

their testimony. As the court of appeals observed,

Appellant presents three arguments in support of his sufficiency of the

evidence challenge. First, he argues that one witness, Jamie, admitted that he

lied to detectives during their investigation of the burglaries. Consequently,

appellant contends that Jamie's trial testimony should not have been

believed. Second, appellant argues that the state's case relied on the trial

testimony of Jamie and Scott. Appellant notes that he had a highly

contentious relationship with these individuals, who apparently had

previously tried to kill him. As a result, appellant contends that these

individuals' trial testimony should not have been believed because they had

a motive to lie. Lastly, appellant notes that Jamie had made a deal with the

state to have him transferred to another prison if he testified during

appellant's trial. Accordingly, appellant contends that his testimony should

not have been believed for this additional reason.

It is clear that all of appellant's arguments in support of his first assignment

of error challenge the credibility of the testimony offered during the trial.

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However, because courts do not evaluate witness credibility when reviewing

a sufficiency of the evidence challenge, we reject appellant's arguments in

this regard. See [State v.] Jenks [61 Ohio St. 3d 259 (1991)] at syllabus;

Thompkins at 390; and [State v.] Yarbrough [95 Ohio St. 3d 227 (2002)] at ¶ 79.

Appellant's convictions are supported by sufficient evidence.

State v. Haas, 2011 WL 2175023, *3. The principles cited by the state court - that, in the

context of a sufficiency of the evidence challenge, the court cannot evaluate the credibility

of the witnesses because that is the jury’s function - is a principle well-established in federal

case law as well. See, e.g., United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996) (when

conducting a sufficiency of the evidence review, a court must “refrain from independently

judging the credibility of witnesses or weight of the evidence”), citing, inter alia, Jackson v.

Virginia, supra. Petitioner’s first ground for relief is therefore without merit.

C. GROUND THREE - PROSECUTORIAL MISCONDUCT

Petitioner does not make any specific argument in his petition about this claim. 

The Court therefore assumes it is the same claim he presented to the state court of

appeals. As reflected in the appellate brief he filed (Return of Writ, Exhibit 9), petitioner

claimed that the county prosecutors committed misconduct when they visited witness

Jamie Richesson the day before the trial and threatened him with an extremely long

prison term (100 years) if he did not testify. As part of the background of this issue,

Mr. Richesson had signed a plea agreement obligating him to testify when asked, but

shortly before petitioner’s trial he expressed some unwillingness to testify. Prosecutors

met with him and explained that if he breached the plea agreement, they could

prosecute him for a whole host of offenses and that he could conceivably be sentenced

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to 100 years in prison. As petitioner phrased his argument, “One does not expect to see

the prosecutor threaten a witness with 100 years in prison and believe there is any truth

to testimony given by a witness who is under duress. Clearly the prosecutor’s (sic) in

this case lost their way and violated the Appellant’s due process rights.” Id. at 13. 

Petitioner also argued that the friendship between Franklin County Prosecutor Ron

O’Brien and one of the victims created an impermissible conflict of interest. Id.

The state court of appeals analyzed this issue in the following manner:

Appellant presents two arguments in support of his third assignment of

error. First, he argues that Jamie was coerced into testifying. Second, he

notes that one of the victims in this matter knew one of the prosecutors

representing the state.

The record clearly demonstrates that Jamie entered a plea agreement,

under which he agreed to testify truthfully for the prosecution. The day

before Jamie was set to testify, however, he began having second thoughts

about testifying. His reluctance was based upon threats he had apparently

received from prison inmates. One inmate told him that a price was on his

head, while another told him that his house would be burned down with

his children inside of it. When Jamie informed prosecutors of his

apprehension, prosecutors visited him several times to explain what

would happen if he chose not to testify. Jamie was given the choice: he

could testify truthfully and uphold his side of his plea agreement, or he

could face prosecution for all of the crimes he committed.

We note that Jamie's testimony merely corroborated Scott's. Nothing in

the record suggests that his testimony was anything but truthful. In any

event, the jury was informed about Jamie's apprehension in testifying and

could assess his credibility in light of that information. See State v. Sanders,

92 Ohio St.3d 245, 271, 2001–Ohio–189. The reason Jamie ultimately chose

to testify did not affect the fairness of appellant's trial. Accordingly, there

was no violation of appellant's due process rights. Id., citing Overton v.

United States (C.A.5, 1971), 450 F.2d 919, 920.

The record also demonstrates that the victim of the Shire Cove burglary

knew one of the prosecutors in this matter. Appellant argues that certain

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favors were granted to this victim in exchange for his testimony.

However, the record is completely devoid of anything supporting such an

argument. The victim's testimony had no relation to appellant, but,

instead, merely regarded his residence and what items were missing

following the burglary. Based upon the record before us, in no way was

appellant deprived of his right to a fair trial because a victim knew a

prosecutor. As a result, we find no prosecutorial misconduct in the instant

matter.

State v. Haas, supra, at *7-8.

Taking these claims in reverse order, the state court of appeals did not articulate

any legal standard governing the assertion that Prosecutor O’Brien’s refusal to

withdraw from the case despite his friendship with one of the victims constituted

misconduct other than the statement that petitioner was not deprived of his right to a

fair trial, nor did it cite any case law. However, its decision was still a reasonable one.

Prosecutorial conduct which results in a fundamentally unfair trial can violate a

defendant’s due process rights. Darden v. Wainwright, 477 U.S. 168, 193 (1986). When

considering such a claim, “the reviewing court must examine the prosecutor's offensive

actions in context and in light of the entire trial, assessing the severity of the conduct,

the effect of the curative instructions, and the quantum of evidence against the

defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001). Even comments made

during closing argument about a friendship between the prosecutor trying the case and

the victim are not necessarily prejudicial; as long as the prosecutor “conveyed no

substantive, personal information” and “focused the jury’s attention on the admitted

evidence” there is no error. Resnover v. Pearson, 965 F.2d 1453, 1465 (7th Cir. 1992).

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Here, petitioner did not point out to the state court, and does not point out here,

how the friendship between Prosecutor O’Brien and the victim affected the outcome of

the case. The jury was never asked to consider this friendship in any way in its

evaluation of the evidence. Further, the victim merely testified about the break-in at his

home, which no one disputed, and the items which were taken. He was unable to

identify petitioner (or anyone else, for that matter) as one of the burglars. Given the

overwhelming evidence of guilt, established primarily through the testimony of Jamie

Richesson and Scott Keaveney, in the context of the entire trial the acknowledged

friendship between Prosecutor O’Brien and the victim had no impact on the fairness of

the trial.

Petitioner’s other contention is slightly more substantial. It is true that, in an

egregious case, a prosecutor may violate due process by leveling threats against a

witness. See, e.g., United States v. Heller, 830 F.2d 150, 154 (11th Cir. 1987). In that case, an

IRS agent’s intentional conduct designed to “scare” a witness into changing his

testimony in way unfavorable to the defendant was held to be grounds for reversal

because the defendant was “deprived of an important defense witness by substantial

interference on the part of the government.” Usually, it is threats by the government to

prevent a defense witness from testifying that deprive a defendant of a fair trial, and not

threats by the government to a government witness. In the latter case, there must be

some showing that the threats led the witness to testify falsely. Where a witness,

despite being threatened with consequences such as being prosecuted or removed from

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a drug treatment program, appears voluntarily (that is, making a choice between the

testifying and facing the consequences of failing to testify - exactly what Jamie

Richesson said he did in this case) no due process violation occurs. Garcia v. Alameida,

189 Fed. Appx. 649, 650 (9th Cir. June 19, 2006). This is especially true where there is no

indication that the pressure on the witness led to any false testimony - and here, as the

state court noted, all of Jamie Richesson’s testimony was essentially corroborated by

Scott Keaveney’s evidence - and where defense counsel was able to bring out all the

circumstances surrounding the prosecutors’ conduct. As another court has observed,

“the safeguards of defense cross-examination and argument prevented the prosecutor's

tactics from rendering the trial fundamentally unfair.” Nichols v. Garcia, 1999 WL

459362, *9 (N.D. Cal. June 28, 1999). For all of these reasons, the state court did not

unreasonably decide this issue against petitioner.

D. GROUND FOUR - INEFFECTIVE ASSISTANCE OF COUNSEL

 Petitioner’s final claim is that he received ineffective assistance of counsel. As

argued in his appellate brief, the gist of this claim is that counsel did not request oral

argument or otherwise effectively support a motion to dismiss counts nine and ten of

the indictment; that he did not request removal of a juror who expressed fear for her

safety; that he did not file a motion to dismiss counts nine and ten on speedy trial

grounds; and that he did not move to suppress statements made by Scott Keaveney to

the police on grounds that Mr. Keaveney was under the influence of drugs at the time

he made the statements.

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Again, because this Court’s task is to determine if the state court’s decision on

these issues constituted an unreasonable application of clearly established federal law,

the analysis begins with the state appellate court’s treatment of this claim. That court

said:

By way of his fourth assignment of error, appellant argues that he

received ineffective assistance of counsel. Again, we disagree.

In Ohio, a properly licensed attorney is presumed competent. Vaughn v.

Maxwell (1965), 2 Ohio St.2d 299, 301. Therefore, the burden of showing

ineffective assistance of counsel is on the party asserting it. State v. Smith

(1985), 17 Ohio St.3d 98, 100. Trial counsel is entitled to a strong

presumption that all decisions fall within the wide range of reasonable

professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675.

Additionally, in fairly assessing counsel's performance, there is a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412,

2006–Ohio–2815, ¶ 101.

Trial strategy and even debatable trial tactics do not establish ineffective

assistance of counsel. Id. A reviewing court must be “highly deferential to

counsel's performance and will not second-guess trial strategy decisions.”

State v. Tibbetts, 92 Ohio St.3d 146, 166–67, 2001–Ohio–132. Strategic

choices made after substantial investigation “will seldom if ever” be found

wanting. Strickland v. Washington (1984), 466 U.S. 686, 681, 104 S.Ct. 2052,

2061. “Because advocacy is an art and not a science, and because the

adversary system requires deference to counsel's informed decisions,

strategic choices must be respected in these circumstances if they are

based on professional judgment.” Id.

“[T]he benchmark for judging any claim of ineffectiveness must be

whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial court cannot be relied on as having

produced a just result.” Id. at 686, 104 S.Ct. at 2064. In order to succeed on

a claim of ineffective assistance of counsel, appellant must satisfy a

two-prong test. First, he must demonstrate that his trial counsel's

performance was deficient. Id. at 687, 104 S.Ct. at 2064. This requires a

showing that his counsel committed errors which were “so serious that

counsel was not functioning as the ‘counsel’ guaranteed by the Sixth

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Amendment.” Id. If he can show deficient performance, he must next

demonstrate that he was prejudiced by the deficient performance. Id. To

show prejudice, he must establish there is a reasonable probability that,

but for his counsel's unprofessional errors, the result of the trial would

have been different. A reasonable probability is one sufficient to erode

confidence in the outcome. Id. at 694, 104 S.Ct. at 2068.

In this appeal, appellant notes that his trial counsel filed a motion to

dismiss Counts 9 and 10 of the indictment in the trial court based upon

purported speedy trial violations. However, according to appellant, his

trial counsel should have requested oral argument on the issue. Instead of

doing so, counsel merely asserted an objection for the record when his

written motion was denied.

This is precisely the type of trial strategy that we may not second-guess

when presented with a claim of ineffectiveness. Indeed, based upon the

record, trial counsel specifically set forth appellant's arguments by filing a

written motion. He also raised the issue on the record before the trial

commenced. When the trial judge denied appellant's motion, counsel

noted an objection for purposes of appeal. In this appeal, appellant does

not challenge the substance of the ruling on the issue but, instead, only

argues that counsel should have done more in presenting it to the court.

We disagree because appellant's trial counsel employed a trial strategy

based upon his professional judgment. Appellant did not receive

ineffective assistance of counsel in this regard.

Appellant next argues that his trial counsel should have filed a motion to

suppress statements made by Scott during the investigation. He contends

that Scott was under the influence of cocaine when he gave statements to

investigators. However, the record indicates otherwise. Indeed, although

Scott testified that he had used cocaine early in the morning on December

22, 2007, he also testified that he was not interviewed until approximately

3:20 p.m. Investigators testified that he was alert, coherent, and responsive

to questioning. The testimony also undisputedly showed that he did not

appear to be under the influence of any drugs at the time of the

investigation.

“When claiming ineffective assistance due to failure to file or pursue a

motion to suppress, an appellant must point to evidence in the record

showing there was a reasonable probability the result of trial would have

differed if the motion had been filed or pursued.” State v. Gaines, 11th Dist.

No.2006–L–059, 2007–Ohio–1375, ¶ 17, citing State v. Clark, 11th Dist.

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No.2002–A–0056, 2003–Ohio–6689, ¶ 28. Moreover, the failure to file a

motion to suppress constitutes ineffective assistance of counsel only if,

based upon the record, the motion would have been granted. State v.

Robinson (1996), 108 Ohio App.3d 428, 433; see also State v. Adams, 103 Ohio

St.3d 508, 2004–Ohio–5845, ¶ 29–32 (failure to file motion to suppress

pretrial statements constitutes “tactical judgment” and not ineffective

assistance of counsel). The failure to file a futile motion to suppress does

not amount to ineffective assistance of counsel. See Robinson at 433.

Appellant has failed to point to any evidence demonstrating that the trial

would have yielded different results had a motion to suppress been filed.

Instead, appellant merely makes the conclusory statement that Scott was

under the influence of drugs at the time he provided statements. See State

v. Woodard, 11th Dist. No.2009–A0047, 2010–Ohio–2949, ¶ 15. Accordingly,

based upon the record before us, appellant did not receive ineffective

assistance of counsel based upon the failure to file a motion to suppress.

Appellant's final argument in support of his ineffectiveness claim is that

counsel should have dismissed a juror when she expressed concern over

her own safety. According to the record, in the middle of trial, one juror

left a voicemail with the court expressing concern over the fact that her

place of employment was discussed during voir dire. The trial judge

conducted a conference with counsel outside the presence of all jurors and

then inquired further of the juror as to whether she could deliberate fairly

and freely despite her concerns. Upon further inquiry, the juror indicated

that she no longer had such concerns and could discharge her duties as a

juror. Neither side raised any objection to her continued service as a

member of the jury.

Again, it was a tactical decision based upon professional judgment as to

whether trial counsel should have objected to the juror's continued

involvement in the case. We must not second-guess such trial tactics and

instead must defer to counsel's professional judgment when presented

with an ineffective assistance claim. Appellant did not receive ineffective

assistance in this regard. 

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

As the state court recognized, the controlling principles of law are set forth in

Strickland v. Washington, 466 U.S. 668 (1984). The state court also explained Strickland’s

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two-pronged test correctly, noting that in order to demonstrate ineffective assistance of

counsel, a petitioner must show both deficient performance of his or her attorney and

prejudice from that performance, i.e. a reasonable probability that, but for counsel’s

errors, the outcome of the trial would have been different. Thus, the only question is

whether the state court unreasonably applied these principles to the facts of this case.

The state court made several factual findings relating to this claim which are

binding on this Court. See Bowling v. Parker, 344 F.3d 487, 497 (6th Cir. 2003)(under 28

U.S.C. §2254(e)(1), “[t]he presumption of correctness also attaches to the factual findings

of a state appellate court based on the state trial record”). Those include the findings

that the juror in question, after raising her concerns, stated that she had overcome her

fear and could continue to serve as a juror, and that Scott Keaveney was not actually

under the influence of his early morning cocaine use when police questioned him in the

middle of the afternoon. Given these findings, there is no reasonable chance that had

counsel either asked to have the juror dismissed or asked to have Scott’s testimony

about his statements to the police suppressed, those requests would have been granted. 

This Court also finds that the state court’s conclusion that counsel did not act

unreasonably by choosing to put his speedy trial arguments in writing rather than by

asking for oral argument to be a fair conclusion; petitioner never demonstrated (and

likely could not demonstrate) that the trial judge’s ruling was affected by the absence of

oral argument on the motion. Further, petitioner never pressed the claim, either in state

court or here, that the speedy trial motion was wrongly decided, or that it was wrongly

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decided due to some failure on the part of counsel. For all of these reasons, the Court

concludes that petitioner’s fourth claim lacks merit.

 V. RECOMMENDED DISPOSITION

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

petition for a writ of habeas corpus be DISMISSED. 

VI. 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 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).

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 /s/ Terence P. Kemp 

United States Magistrate Judge

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