j 

RICHARD HORTON, 

Petitioner, 

v. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CASE NO. 2:12-cv-757 

JUDGE WATSON 

RHONDA RICHARD, WARDEN, 

Respondent. 

OPINION AND ORDER 

On October 1, 2013, the Magistrate Judge issued a Report and 

Recommendation recommending that the instant petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed an 

Objection to the Magistrate Judge's Report and Recommendation. This Court 

has conducted a de novo review under 28 U.S.C. § 636(b). For the reasons that 

follow, Petitioner's Objection, ECF No. 23 is OVERRULED. The Report and 

Recommendation is ADOPTED and AFFIRMED. This action is hereby 

DISMISSED. 

Petitioner first objects to any finding that he is a pro se litigant. Petitioner is 

represented by counsel, and therefore this objection is sustained. Sustaining the 

objection does not, however, change the outcome of this case. 

Petitioner also objects to the deference being given the state appellate 

court's decision regarding defense counsel's strategic decision not to present an 

expert witness on the unreliability of eyewitness identification. Petitioner asserts 

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that his attorney performed in a constitutionally ineffective manner under the twoprong test of Strickland v. Washington, 466 U.S. 668 (1984), and objects to any 

finding to the contrary. He again argues that defense counsel failed to investigate 

and was unprepared for trial. Finally, Petitioner objects to the Magistrate Judge's 

denial of relief on his claim that his sentence was unconstitutionally imposed. 

The Court is not persuaded by Petitioner's arguments. As previously 

discussed, the mere fact counsel filed a form motion to suppress evidence fails 

both prongs of the Strickland test. The trial court conducted a hearing on the 

motion. Defense counsel was able to make arguments regarding reasons for the 

filing of the motion, and the record is without support for Petitioner's claim that he 

performed in a constitutionally ineffective manner in doing so, or that Petitioner 

was prejudiced thereby. 

Likewise, Petitioner has failed to establish his attorney performed in a 

constitutionally ineffective manner in cross-examining Richard Mclanahan. It 

was brought out on cross examination that McClanahan's testimony that 

Petitioner attempted to bribe him was without support. Presenting a witness who 

would corroborate that Petitioner met with McClanahan prior to trial would not 

have advanced this defense to any greater degree. Counsel also brought out on 

cross examination that the perpetrator of the offense wore a hood that was drawn 

all the way up, covering most of his face, his eyes and eyebrows being only 

visible parts of his face. Thus the identification of Petitioner as the perpetrator 

was brought into question. Defense counsel did ask, on cross examination, if it 

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was true that McClanahan bought drugs from the Petitioner; however, these 

questions suggested a motive for McClanahan's identification of Petitioner as the 

perpetrator of the offense, which is a strategic decision on the part of defense 

counsel, and does not provide a basis for relief. Defense counsel also 

questioned McClanahan on his memory of Petitioner as a basis for his 

identification, since McClanahan had not seen Petitioner for eight to ten years 

(when Petitioner purchased a car from McClanahan's niece), yet McClanahan 

testified that he identified Petitioner in large part from this prior contact. PageiD# 

218). 

A criminal defendant "must overcome the presumption that, . . . the 

challenged action might be considered to be sound trial strategy." Strickland, 466 

U.S. at 689 (citation omitted). Petitioner has not done so here. Moreover, 

[t]he question "is not whether a federal court believes 

the state court's determination" under the Strickland 

standard "was incorrect but whether that determination 

was unreasonable-a substantially higher threshold." 

Schriro, supra, at 473, 127 S.Ct. 1933. And, because 

the Strickland standard is a general standard, a state 

court has even more latitude to reasonably determine 

that a defendant has not satisfied that standard. See 

Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 

2140, 158 L.Ed.2d 938 (2004) ("[E]valuating whether a 

rule application was unreasonable requires considering 

the rule's specificity. The more general the rule, the 

more leeway courts have in reaching outcomes in caseby-case determinations"). 

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). 

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For the reasons detailed by the state appellate court, this Court agrees that 

counsel's decision not to call an expert witness was one of trial strategy, and that 

Petitioner, in any event, cannot establish that he was prejudiced thereby. 

Further, contrary to Petitioner's argument, the Ohio appellate court's 

characterization of the evidence as inditcating that the robbery lasted between 15 

and 25 minutes, and was not a brief encounter, is reasonable in view of the 

circumstances of this case. Similarly, for the reasons discussed in the Magistrate 

Judge's Report and Recommendation, this Court does not agree that the record 

shows that the method of identification of Petitioner was unduly suggestive, or 

that the witnesses' identification of him was inherently unreliable. 

Finally, Petitioner's assertion that his sentence was unconstitutionally 

imposed because it violated the rule of lenity has been uniformly rejected by 

courts that have considered this issue. Moreover, a sentencing court is expressly 

permitted to consider prior criminal convictions under Blakely v. Washington, 542 

U.S. at 301. 

Petitioner's Objection, ECF No. 23, is OVERRULED. The Report and 

Recommendation is ADOPTED and AFFIRMED. This action is hereby 

DISMISSED. 

IT IS SO ORDERED. 

Case No. 2: 12-cv-757 

MICHAEL H. WATSON, JUDGE 

UNITED STATES DISTRICT COURT 

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