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This court 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RICHARD HORTON, 

 CASE NO. 2:12-CV-757 

 Petitioner, JUDGE WATSON 

 MAGISTRATE JUDGE ABEL 

 v. 

RHONDA RICHARD, WARDEN, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner Richard Horton, a state prisoner, brings this action for a writ of habeas corpus 

under 28 U.S.C. § 2254. This matter is before the Magistrate Judge on the Petition, 

Respondent’s Return of Writ, Petitioner’s Traverse and the exhibits of the parties. 

Petitioner Richard Horton was convicted after a jury trial of aggravated robbery, robbery, 

kidnapping, and felonious assault with specifications. He was also convicted of having a weapon 

while under disability. The charges arose from an armed man entering the home of Richard 

McClanahan and Rhonda Curry, shooting McClanahan in the leg, threatening to kill both, and 

stealing $40.00. Although the gunman wore a hooded sweatshirt with the hood wrapped tightly 

around his face, McClanahan and Curry identified Horton as the armed robber. Both testified that 

they knew him previously and recognized him because of their familiarity with him, The Ohio 

Court of Appeals affirmed Petitioner’s convictions and sentence on direct appeal, and the Ohio 

Supreme Court dismissed Petitioner’s appeal. Petitioner also unsuccessfully pursued post 

conviction relief. In these habeas corpus proceedings, Petitioner asserts he was denied effective 

assistance of counsel, denied a fair trial based on unduly unreliable identification testimony, and 

that his sentence was unconstitutionally imposed. For the reasons that follow, the Magistrate 

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Judge concludes that none of Petitioner’s claims warrant federal habeas corpus relief and 

therefore RECOMMENDS that this action be DISMISSED. 

Facts and Procedural History: 

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of 

this case as follows: 

According to the evidence of plaintiff-appellee, State of Ohio (“the 

state”), on October 8, 2004, Richard McClanahan cashed a 

paycheck. After cashing his paycheck, McClanahan went to a store 

to buy beer and stopped by a public telephone to place a call. 

Observing that McClanahan had a pocketful of money, defendant 

asked McClanahan if he could borrow $20. McClanahan refused 

defendant's request. McClanahan also refused defendant's request 

to use the public telephone ahead of McClanahan. 

The next morning, defendant, who had a gun with him, forcibly 

entered Richard McClanahan and Rhonda Curry's home in 

Columbus, and demanded money. Upon forcibly entering the 

home, defendant shot McClanahan in the leg, and struck 

McClanahan in the head with the gun. In addition, defendant 

threatened McClanahan and Curry and prevented them from 

leaving the house. Defendant also kicked McClanahan, dragged 

McClanahan around the house, and later robbed McClanahan of 

$40. 

After defendant fled the house, Curry and her sister, who was in 

another room at the time of the robbery, brought McClanahan to 

McClanahan's sister's house so that emergency medical personnel 

and police officers could be summoned. Because McClanahan and 

Curry did not have a telephone in their house, Curry and her sister 

were unable to place an emergency call from their home. 

McClanahan later underwent several surgeries to repair damage to 

his leg. 

By indictment filed on January 7, 2005, defendant was charged 

with one count of aggravated burglary with firearm specifications; 

two counts of aggravated robbery with firearm specifications; four 

counts of robbery with firearm specifications; two counts of 

kidnapping with firearm specifications; one count of felonious 

assault with firearm specifications; and one count of having a 

weapon while under disability. Defendant pled not guilty to these 

charges. 

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Claiming that a pre-trial identification was secured by 

unnecessarily suggestive means thereby depriving him of due 

process rights under the United States and Ohio Constitutions, 

defendant moved to suppress identification evidence by the state's 

witnesses. The trial court denied this motion. 

Waiving his right to a jury trial as to the charge of having a 

weapon under disability, defendant chose to have this charge tried 

by the court. However, as to the remaining charges, defendant 

elected to have these charges tried by a jury. During the trial, four 

counts of robbery were dismissed. 

After deliberating, a jury returned verdicts of guilty as to all 

charges before it. The trial court also found defendant guilty of 

having a weapon under disability. Finding that defendant's conduct 

as to the aggravated robbery charges and the kidnapping charges 

were allied offenses of similar import, the trial court entered no 

convictions as to the kidnapping charges when the trial court 

imposed a 23-year prison sentence. 

From the trial court's amended judgment, which we construe as a 

nunc pro tunc judgment, defendant appeals, and the state crossappeals. See, generally, Crim.R. 36 (providing that clerical 

mistakes in judgments arising from oversight or omission may be 

corrected by the court at any time); see, also, State v. Brown 

(2000), 136 Ohio App.3d 816, 819-820 (discussing function of 

nunc pro tunc entry). 

Since the state filed notice of a cross-appeal, in its responsive brief, 

the state stated a wish to withdraw its cross-appeal. Although the 

state has not formally moved to withdraw its cross-appeal, we 

construe the state's statement seeking withdrawal of its crossappeal as a motion seeking dismissal of the cross-appeal. 

Defendant assigns seven errors for our consideration: 

ASSIGNMENT OF ERROR NO. I: 

THE REPRESENTATION PROVIDED TO RICHARD HORTON 

FELL FAR BELOW THE PREVAILING NORMS FOR 

COUNSEL IN A CRIMINAL CASE, WAS UNREASONABLE, 

AND AFFECTED THE OUTCOME IN VIOLATION OF THE 

FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS 

AS WELL AS ART. I, § 2, 9, 10, AND 16 OF THE OHIO 

CONSTITUTION. 

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ASSIGNMENT OF ERROR NO. II: 

THE ADMISSION OF DETECTIVE WALKER'S TESTIMONY 

REGARDING THE PHOTO ARRAY EVIDENCE PROCEDURE 

AND THE VICTIM'S STATEMENTS IN REGARDS TO THE 

PHOTO ARRAY PROCEDURE VIOLATED RICHARD 

HORTON'S RIGHT TO DUE PROCESS, A FAIR TRIAL, AND 

THE EFFECTIVE ASSISTANCE OF COUNSEL AS 

GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION 

AND ARTICLE I, §§ 2, 10 & 16 OF THE OHIO 

CONSTITUTION. ITS ADMISSION ALSO VIOLATED THE 

OHIO EVIDENCE RULES. EVIDENCE RULES. [sic.] 

ASSIGNMENT OF ERROR NO. III: 

THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE 

PHOTO ARRAY EVIDENCE BECAUSE IT WAS AN 

IMPERMISSIBLY SUGGESTIVE IDENTIFICATION THAT 

LACKED SUFFICIENT INDICIA OF RELIABILITY THEREBY 

VIOLATING RICHARD HORTON'S RIGHTS AS 

GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH 

AMENDMENTS TO THE U.S. FEDERAL CONSTITUTION 

AND ARTICLE I, § 2, 10, AND 16 OF THE OHIO 

CONSTITUTION. 

ASSIGNMENT OF ERROR NO. IV: 

A TRIAL COURT MAY NOT SENTENCE A DEFENDANT TO 

NON-MINIMUM AND CONSECUTIVE SENTENCES 

WITHOUT VIOLATING A DEFENDANT'S 

CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE 

FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION AND ARTICLE I, 

§ 10 AND 16 OF THE OHIO CONSTITUTION. THE DECISION 

RENDERED BY THE SUPREME COURT OF OHIO IN STATE 

V. FOSTER (2006), 109 OHIO ST.3D 1, IS INCOMPATIBLE 

WITH THE CONTROLLING PRECEDENT OF THE UNITED 

STATES SUPREME COURT AND MUST BE REJECTED. 

ASSIGNMENT OF ERROR NO. V: 

THE TRIAL COURT VIOLATED HORTON'S RIGHTS UNDER 

THE EX POST FACTO CLAUSE OF THE FEDERAL 

CONSTITUTION BY SENTENCING APPELLANT TO A 

TERM OF INCARCERATION WHICH EXCEEDED THE 

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MAXIMUM PENALTY AVAILABLE UNDER THE 

STATUTORY FRAMEWORK AT THE TIME OF THE 

OFFENSE. THE DECISION RENDERED BY THE SUPREME 

COURT OF OHIO IN STATE V. FOSTER (2006), 109 OHIO 

ST.3D 1, WHICH PURPORTS TO AUTHORIZE THE 

SENTENCE RENDERED AGAINST RICHARD HORTON, IS 

INCOMPATIBLE WITH THE CONTROLLING PRECEDENT 

OF THE UNITED STATES SUPREME COURT AND MUST BE 

REJECTED. 

ASSIGNMENT OF ERROR NO. VI: 

THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS 

UNDER THE FOURTEENTH AMENDMENT TO THE 

FEDERAL CONSTITUTION BY SENTENCING APPELLANT 

PURSUANT TO THE DECISION RENDERED BY THE 

SUPREME COURT OF OHIO IN STATE V. FOSTER (2006), 

109 OHIO ST.3D 1, BECAUSE THE HOLDING OF FOSTER IS 

INVALID UNDER ROGERS V. TENNESSEE (2001), 532 U.S. 

451. 

ASSIGNMENT OF ERROR NO. VII: 

THE RULE OF LENITY REQUIRES THE IMPOSITION OF 

MINIMUM AND CONCURRENT SENTENCES, AND THE 

RULING OF THE TRIAL COURT TO THE CONTRARY MUST 

BE REVERSED. 

State v. Horton, No. 06AP-311, 2007 WL 2398487, at *1-3 (Ohio App. 10th Dist. Aug. 23, 

2007). On August 23, 2007, the appellate court affirmed the trial court’s judgment. Id. On 

December 26, 2004, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. 

Horton, 116 Ohio St.3d 1458 (2007). 

 Petitioner pursued a petition for post conviction relief in the state trial court. He asserted 

that he was denied effective assistance of counsel because his attorney failed to obtain an expert 

on eyewitness identification; failed to call defense witnesses; failed to object to the photo array; 

and failed to introduce evidence to impeach Richard McClanahan. Exhibits 19, 20 to Return of 

Writ. The trial court held that Petitioner’s latter three claims were barred under Ohio’s doctrine 

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of res judicata. After a hearing, on April 16, 2010, the trial court denied the remainder of 

Petitioner’s claims. Exhibit 22 to Return of Writ. Petitioner filed a timely appeal. As his sole 

assignment of error, Petitioner asserted as follows: 

The trial court erred in dismissing Appellant's petition for postconviction relief, where Appellant established that his trial 

counsel's failure to present expert testimony on the subject of 

eyewitness identification deprived him of his rights to a fair trial, 

the effective assistance of counsel, and due process of law as 

guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the 

United States Constitution and comparable provisions of the Ohio 

Constitution. 

State v. Horton, No. 10AP-466, 2011 WL 1049531, at *1 (Ohio App. 10th Dist. March 24, 2011). 

On March 24, 2011, the appellate court affirmed the judgment of the trial court. Id. On August 

24, 2011, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Horton, 

129 Ohio St.3d 1452 (2011). 

On July 7, 2011, and then again on July 19, 2011, appellant filed a 

“Motion for Relief from Judgment” pursuant to Civ.R. 60(B), in 

which he argued that his indictment was defective under the 

Supreme Court of Ohio's decision in State v. Colon, 118 Ohio 

St.3d 26, 2008–Ohio–1624. On August 24, 2011, the trial court 

filed an entry denying what it mischaracterized as appellant's 

motion for judicial release filed July 19, 2011. 

Appellant appeals the trial court's August 24, 2011 entry and 

assigns the following errors: 

(1). THE TRIAL COURT ERRORED [sic] IN FAILING TO 

ADDRESS THE GROUNDS FRO [sic] RELIEF. DEPRIVING 

APPELLANT OF DUE PROCESS OF LAW. 

(2). THE TRIAL COURT ERRED IN REFUSING TO GRANT 

RELIEF FROM THE JUDGMENT OF CONVICTION OR A 

CHARGE THAT WAS NEVER PROPERLY ALLEGED. 

State v. Horton, No. 11AP-804, 2012 WL 1622693, at *1 (Ohio App. 10th Dist. May 8, 2012). 

Petitioner apparently did not file an appeal to the Ohio Supreme Court. 

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 On August 22, 2012, Petitioner filed this pro se petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation 

of the Constitution of the United States based upon the following grounds: 

GROUND ONE: PETITIONER WAS DENIED EFFECTIVE 

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE 

SIXTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION. PETITIONER’S 

COUNSEL’S PERFORMANCE FELL BELOW OBJECTIVE 

STANDARDS OF PROFESSIONAL COMPETENCE AND THE 

RESULTING PREJUDICE RENDERED THE TRIAL 

CONSTITUTIONALLY INFIRM WHEN COUNSEL FAILED 

TO HIRE AN EXPERT, PRODUCE A REPORT, AND 

PROVIDE EXCULPATORY TESTIMONY FROM SAID 

EXPERT TO THE JURY IN THIS MATTER. 

GROUND TWO: PETITIONER’S TWENTY-TWO YEAR 

SENTENCE VIOLATES HIS SIXTH AMENDMENT RIGHT TO 

HAVE THE JURY DECIDE ALL ISSUES OF FACT 

PURSUANT TO THE SUPREME COURT OF THE UNITED 

STATES HOLDING IN BLAKELY V. WASHINGTON AND 

APPRENDI V. NEW JERSEY. 

GROUND THREE: THE UNDULY SUGGESTIVE LINEUP 

LACKS RELIABILITY AND VIOLATES PETITIONER’S 

RIGHTS UNDER THE FEDERAL CONSTITUTION. 

It is the position of the Respondent that Petitioner’s claims fail to provide a basis for federal 

habeas corpus relief. The Magistrate Judge will address Petitioner’s claims out of order, for ease 

of review. 

Claim Three: 

In claim three, Petitioner asserts he was denied a fair trial based on an unduly suggestive 

identification. The state appellate court rejected this claim as follows: 

[D]efendant asserts that the trial court erred under both the United 

States and Ohio Constitutions by failing to suppress a photo array 

that was used to identify defendant because this array was 

impermissibly suggestive and lacked sufficient indicia of 

reliability. 

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“Appellate review of a motion to suppress presents a mixed 

question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 

2003-Ohio-5372, at ¶ 8; see, also, State v. Roberts, 110 Ohio St.3d 

71, 2006-Ohio-3665, at ¶ 100, reconsideration denied, 111 Ohio 

St.3d 1418, 2006-Ohio-5083; State v. Carrocce, Franklin App. No. 

06AP-101, 2006-Ohio-6376, at ¶ 26 (Brown, J., dissenting). 

“When considering a motion to suppress, the trial court assumes 

the role of trier of fact and is therefore in the best position to 

resolve factual questions and evaluate the credibility of witnesses.” 

Burnside, at ¶ 8, citing State v. Mills (1992), 62 Ohio St.3d 357, 

366, rehearing denied, 63 Ohio St.3d 1406, certiorari denied, 505 

U.S. 1227, 112 S.Ct. 3048; see, also, Roberts, at ¶ 100; Carrocce,

at ¶ 26. As a consequence, “an appellate court must accept the trial 

court's findings of fact if they are supported by competent, credible 

evidence,” Burnside, at ¶ 8, citing State v. Fanning (1982), 1 Ohio 

St.3d 19, and “an appellate court must then independently 

determine, without deference to the conclusion of the trial court, 

whether the facts satisfy the applicable legal standard.” Burnside,

at ¶ 8, citing State v. McNamara (1997), 124 Ohio App.3d 706; 

see, also, Roberts, at ¶ 100; Carrocce, at ¶ 26. 

“The due process clauses of the Fifth and Fourteenth Amendments 

to the United States Constitution prohibit the admission of 

unreliable identification testimony derived from suggestive 

identifications procedures.” State v. Brust (May 28, 2000), 

Franklin App. No. 99AP-509 (Tyack, J., dissenting in part), 

dismissed, appeal not allowed, 89 Ohio St.3d 1465, citing Stovall 

v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967. See, also, Sorrell v. 

Thevenir (1994), 69 Ohio St.3d 415, 422-423, citing Direct 

Plumbing Supply Co. v. Dayton (1941), 138 Ohio St. 540, 544 

(stating that the “[t]he ‘due course of law’ provision [in Section 16, 

Article I, of the Ohio Constitution] is the equivalent of the ‘due 

process of law’ provision in the Fourteenth Amendment to the 

United States Constitution”); Peebles v. Clement (1980), 63 Ohio 

St.2d 314, 317. 

“Before identification testimony is suppressed, the trial court must 

find that the procedure employed was so impermissibly suggestive 

as to give rise to a very substantial likelihood of misidentification.” 

Brust, supra, citing State v. Blackwell (1984), 16 Ohio App.3d 100, 

103, citing Neil v. Biggers (1972), 409 U.S. 188, 198, 93 S.Ct. 375; 

see, also, State v. Lee, Franklin App. No. 06AP-226, 2007-Ohio1594, at ¶ 13; State v. Smith, Hamilton App. No. C-010517, 2002-

Ohio-2886, at ¶ 14, appeal not allowed, 96 Ohio St.3d 1525, 2002-

Ohio-5099. 

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In Lee, this court explained: 

* * * The defendant has the burden to show that the identification 

procedure was unduly suggestive. * * * If the defendant meets that 

burden, the court must then consider whether the identification, 

viewed under the totality of the circumstances, is reliable despite 

its suggestive character. * * * If the pretrial confrontation 

procedure was not unduly suggestive, any remaining questions as 

to reliability go to the weight of the identification, not its 

admissibility, and no further inquiry into the reliability of the 

identification is required. * * * 

Id. at ¶ 13 (citations omitted); see, also, United States v. Hill

(C.A.6, 1992), 967 F.2d 226, 230-231, certiorari denied, 506 U.S. 

964, 113 S.Ct. 438. 

“Even if the identification procedure utilized is suggestive, as long 

as the identification itself is otherwise reliable the identification is 

admissible.” Brust, supra, citing Biggers, at 199. Furthermore, 

“even assuming that the procedure used was impermissibly 

suggestive, ‘[u]nnecessary suggestiveness alone * * * does not 

require exclusion of a photographic identification. Rather, the 

identification process must be so unreliable under the totality of the 

circumstances as to create a substantial likelihood of irreparable 

misidentification before the identification will be excluded.’ “ 

Brust, supra, quoting State v. Biddings (Dec. 6, 1990), Franklin 

App. No. 89AP-822, dismissed by, 59 Ohio St.3d 713. See, also, 

State v. Berry (June 29, 1999), Franklin App. No. 97AP-964, 

dismissed, appeal not allowed by, 87 Ohio St.3d 1430, and motion 

for delayed appeal denied by (2000), 88 Ohio St.3d 1436. 

In Brust, this court stated: 

To determine whether, under the totality of the circumstances, an 

identification was reliable, even though the confrontation 

procedure was suggestive, the following factors should be 

considered: “The opportunity of the witness to view the criminal at 

the time of the crime, the witness' degree of attention, the accuracy 

of the witness' prior description of the criminal, the level of 

certainty demonstrated by the witness at the confrontation, and the 

length of time between the crime and the confrontation.” 

Id., quoting Neil, at 199. See, also, State v. Davis (1996), 76 Ohio 

St.3d 107, 113, reconsideration denied, 76 Ohio St.3d 1479, citing 

State v. Waddy (1992), 63 Ohio St.3d 424, 439, superseded by state 

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constitutional amendment on other grounds in State v. Smith

(1997), 80 Ohio St.3d 89, 103, citing Neil, at 199-200. 

“[N]o due process violation will be found where an identification 

does not stem from an impermissibly suggestive confrontation, but 

is instead the result of observations at the time of the crime.” 

Davis, at 112, citing Coleman v. Alabama (1970), 399 U.S. 1, 5-6, 

90 S.Ct. 1999. 

Defendant asserts that the photo array was impermissibly 

suggestive because, except for defendant's photograph, no other 

photograph in the array portrayed an African-American male of 

light complexion. Defendant further asserts that the reliability of 

the identification was questionable because the photo array was 

submitted to the victims for their review almost two months after 

defendant allegedly robbed the victims. 

“A defendant in a lineup need not be surrounded by people nearly 

identical in appearance.” Davis, at 112, citing New York v. Chipp

(1990), 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 77, 552 N.E.2d 608, 

613, certiorari denied, 498 U.S. 833, 111 S.Ct. 99. “ ‘[E]ven * * * 

significant dissimilarities of appearance or dress' will not 

necessarily deny due process.” Davis, at 112, citing 1 LaFave & 

Israel, Criminal Procedure (1984) 587, Section 7.4. See, also, State 

v. Murphy (2001), 91 Ohio St.3d 516, 534, citing Davis, at 112, 

reconsideration denied, 92 Ohio St.3d 1451, certiorari denied 

(2002), 534 U.S. 1116, 122 S.Ct. 926. 

Here, the trial court concluded that the photo array of six AfricanAmerican males, which was computer-generated based upon 

parameters, such as race, age, length of hair, and facial hair, and 

which was separately shown to both victims, was comprised in a 

totally random manner. (Tr. 16-17; 31.) Although the trial court 

found some variation among the photographs, (Tr. 32), the trial 

court concluded that none of the variations was “suggestive.” (Tr. 

33.) Our review of the array reveals that the five other photographs 

are all reasonably close to defendant's photograph in appearance, 

showing no significant variations in hair length, facial hair, age, 

features, dress, or complexion. Accordingly, we find that the trial 

court's factual determination is supported by competent, credible 

evidence. Absent any significant variation in complexion, 

defendant's claim that a difference in complexion among the 

photographs was impermissibly suggestive is unconvincing. See,

e.g., Murphy, at 534; see, also, State v. Wills (1997), 120 Ohio 

App.3d 320, 325, dismissed, appeal not allowed by, 80 Ohio St.3d 

1409, quoting Jarrett v. Headley (C.A.2, 1986), 802 F.2d 34, 41 

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(stating that “the test [for suggestiveness] is ‘whether the picture of 

the accused, matching descriptions given by the witness, so stood 

out from all of the photographs as to suggest to an identifying 

witness that [that person] was more likely to be the culprit’ ”). 

Also, when a police detective separately and independently 

showed the photo array to the victims, the detective reviewed a 

form instructing the victims that the photos were arranged in no 

particular order of importance; defendant might or might not be 

included in the photo array; and neither victim was required to 

select any photo. (Tr. 18-21.) Under such facts and circumstances, 

we cannot conclude that the procedure used by the police detective 

was impermissibly suggestive. 

Because neither the photo array itself nor the procedure used by 

the police detective was impermissibly suggestive, for purposes of 

our review of the trial court's denial of defendant's suppression 

motion, we need not address defendant's claims that the 

identification of defendant from the photo array was unreliable. 

See Lee, at ¶ 13, citing Wills, at 325; State v. Beddow (Mar. 20, 

1998), Montgomery App. No. 16197 (stating that “[i]f the pretrial 

confrontation procedure was not unduly suggestive, any remaining 

questions as to reliability go to the weight of the identification, not 

its admissibility, and no further inquiry into the reliability of the 

identification is required”). 

Accordingly, for the foregoing reasons, defendant's third 

assignment of error is overruled. 

State v. Horton, 2007 WL 2398487, at *3-6. 

The factual findings of the state appellate court are presumed to be correct. 

In a proceeding instituted by an application for a writ of habeas 

corpus by a person in custody pursuant to the judgment of a State 

court, a determination of a factual issue made by a State court shall 

be presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing 

evidence. 

28 U.S.C. § 2254(e)(l). Further, 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, 

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or based on an unreasonable determination of the facts in light of the evidence that was 

presented. 

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. 

28 U.S.C. § 2254(d). “The focus ... is on whether the state court's application of clearly 

established federal law is objectively unreasonable.... [A]n 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 that 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, ––– U.S. ––––, 132 S.Ct. 26 (201l) (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 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)). Petitioner has failed 

to meet this standard. 

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 Petitioner contends that the photo array from which prosecution witnesses Richard 

McClanahan and Rhonda Lynn Curry identified Petitioner was unduly suggestive, because it 

contained photographs of individuals with significant differences in hair length, facial hair, age, 

features, dress, and complexion from that of Petitioner, and because the only individuals with 

skin color similar to that of Petitioner were contained in the bottom row of the photo array. 

Petitioner contends that the state appellate court’s decision indicating the photo array was not 

compiled in an unduly suggestive manner constitutes an unreasonable determination of the facts 

in view of the evidence that was presented. Petitioner complains that Detective Walker chose 

which photographs should be included, rather than use a random compilation of photographs 

obtained from the computer. He argues that neither Curry nor McClanahan’s identification was 

reliable, because they were unable to obtain an adequate view of the perpetrator, who was 

wearing a hood. Additionally, Petitioner asserts that police violated Ohio law by failing to 

comply with the procedure established by O.R.C. § 2933.08. See Petitioner’s Reply. 

 To the extent Petitioner asserts the alleged violation of state law, such claim fails to 

provide a basis for federal habeas corpus relief. A federal court may review a state prisoner's 

habeas petition only on the grounds that the challenged confinement is in violation of the 

Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court may not 

issue a writ of habeas corpus “on the basis of a perceived error of state law.” Pulley v. Harris, 

465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas 

court does not function as an additional state appellate court reviewing state courts' decisions on 

state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). “ ‘[F]ederal courts 

must defer to a state court's interpretation of its own rules of evidence and procedure’ ” in 

considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th 

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Cir. 1985)). Only where the error resulted in the denial of fundamental fairness will habeas relief 

be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). 

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

United States, 390 U.S. 377, 384 (1968)); see also Stovall v. Denno, 388 U.S. 293. “It is the 

likelihood of misidentification which violates a defendant's right to due process.” Neil v. Biggers, 

409 U.S. at 198. A court must first determine whether the pre-trial identification procedure 

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

If so, that 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, 409 U.S. at 199-200; Thigpen v. Cory, 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, 35 F.3d at 1070 (citing Manson v. Brathwaite, 432 U.S. at 114; Neil v. 

Biggers, 409 U.S. at 199-200)). 

“To warrant suppression of identification testimony, the accused 

bears the burden of showing [ (1) ] that the identification procedure 

was ‘so impermissibly suggestive as to give rise to a very 

substantial likelihood of irreparable misidentification’ and [ (2) ] 

that the identification itself was unreliable under the totality of the 

circumstances.” State v. Howard, No. 2004CA29, 2005 WL 

1060621, at *2 (Ohio Ct.App. May 6, 2005) (quoting Simmons v. 

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

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(1968)); see generally Neil v. Biggers, 409 U.S. 188, 198–200, 93 

S.Ct. 375, 34 L.Ed.2d 401 (1972) (summarizing earlier case law 

and providing a clear outline of the two-part test for undue 

suggestiveness). 

Howard v. Warden, 519 Fed.Appx. 360, 363 (6th Cir. March 20, 2013)(unpublished). 

 Petitioner has attached in support of his claim a photocopy of the photo array used by 

police to obtain the identification of Petitioner as the perpetrator. See Traverse. The Magistrate 

Judge has reviewed that document, and is not persuaded that the it was unduly suggestive such as 

to warrant disregarding the state court finding of fact and granting federal habeas corpus relief. 

Detective Walker obtained the photographs from a computer after inputting the 

descriptive information provided to her by the alleged victims. She used the photographs she 

thought were most similar to that of Petitioner. Trial Transcript, PageID #158-59. Nothing in 

the record indicates that Detective Walker, or the police, acted improperly or suggested to the 

alleged victims which photograph to choose when obtaining Petitioner’s identification as the 

perpetrator. The approximate two month delay between the date of the offense charged and the 

date that the alleged victims identified Petitioner from the photo array shown to them by police 

was due to McClanahan’s hospitalization, several surgeries, and his relocation to another 

residence with Curry upon his release from the hospital. PageID #166. 

 Moreover, the totality of circumstances reflect the alleged victims’ identification of 

Petitioner as the armed robber of their home was reliable. McClanahan and Curry both testified 

that the armed robber knocked on the front door, and forcibly entered when McClanahan opened 

the door. Trial Transcript, PageID #188, 190. The gunman hit McClanahan in the head with a 

gun and shot him in the leg. PageID #191. The gunman told McClanahan, “Get the money. 

You just got paid yesterday. . . . Where is your telephone at now, huh? Where is your telephone 

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at?” PageID #192. He dragged McClanahan around the house, threatened to kill McClanahan 

and Curry, and rolled Curry up inside of the sofa bed mattress and acted like he was going to 

shoot her. PageID #192-93. McClanahan gave the gunman $40.00, which was all the money he 

had. PageId #193. McClanahan had seen the intruder earlier that day, while he was using the 

pay telephone after cashing his paycheck at Bob’s Market. PageID #196-97. The man had asked 

to borrow $20.00 from McClanahan. McClanahan refused. PageID #197-98. Eight to ten years 

earlier the gunman had purchased the car of McClanahan’s niece. McClanahan repaired the 

brakes. PageID #198-199. McClanahan told Detective Walker he knew the man who robbed his 

home and shot him, and gave her his first name. McClanahan later called the detective and gave 

her Petitioner’s last name. PageID #202. The gunman was wearing the same clothes (a grey 

hooded sweatshirt and jeans) when he robbed McClanahan as he had been wearing earlier when 

he tried to borrow money from McClanahan. PageID #200. McClanahan identified 

Petitioner’s picture from a photo array in December, approximately two months after the 

robbery. He was one hundred percent sure of his identification of Petitioner. PageID #204, 207. 

He had no doubt. PageID #210. He was able to observe the gunman’s eyes and eyebrows, and 

could recognize his voice.1 PageID #210. McClanahan also knew the perpetrator from the 

neighborhood and knew him by name. PageID #218. 

 Rhonda Curry watched the events described by McClanahan. She had a good 

opportunity to observe the armed robber of her home. PageID #229.2

 She also recognized the 

perpetrator as Richard who had gone to school with her daughter. PageID #233-34. She also 

identified Petitioner as the perpetrator in December from a photo array shown to her by police. 

PageID #234-35. She was not with McClanahan when she identified Petitioner’s photograph, 

                                                            

1

   McClanahan told police the gunman wore a gray hooded sweat shirt with the hood tied up tightly around his face. 

He described the man as a male, light skinned, six feet tall with bushy eyebrows and short hair. PageID #169. 

2 The robbery apparently lasted approximately 15 to 25 minutes. See State v. Horton, 2011 WL 1049531, at *1-7. 

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and was not informed of which picture he had chosen. PageID #235. She was “110 percent” 

certain of her identification of Petitioner as the man who entered her home and shot 

McClanahan. PageID #237. Police did nothing to influence her identification of him. PageID 

#238. She had no doubt. Id. 

 Although the armed robbery wore a sweatshirt with the hood wrapped tightly around his 

face, the record nonetheless fails to reflect that the alleged victims were unable to see enough of 

his facial features to identify him from the photo line up. Additionally, both of the alleged 

victims were able to recognize Petitioner as the armed gunman from their previous encounters 

with him. 

 Claim three is without merit. 

 Claim One: 

In claim one, Petitioner asserts he was denied effective assistance of counsel because his 

attorney failed to hire an expert to testify on his behalf regarding the unreliability of eyewitness 

identification testimony. The state appellate court rejected this claim in relevant part as follows: 

An eleven-count indictment filed January 7, 2005 charged 

defendant with aggravated burglary, felonious assault, having a 

weapon under disability, and multiple counts of aggravated 

robbery, robbery and kidnapping, most with specifications. 

Because some of the evidence underlying defendant's convictions 

is pertinent to his current appeal, we address it in some detail. 

After cashing his paycheck at a convenience store on October 8, 

2004, Richard McClanahan went to a corner store near his house to 

buy beer and to use the pay phone. McClanahan had to pull the 

cash received from cashing his paycheck, about $400 to $500, to 

get to his change to make the phone call. Defendant saw 

McClanahan at the pay phone and, seeing the cash McClanahan 

had in his hand, asked McClanahan to lend him $20; McClanahan 

refused. Defendant commented that McClanahan appeared to have 

just been paid, and McClanahan admitted he had. 

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McClanahan knew defendant because McClanahan's niece sold 

defendant a car several years earlier, McClanahan put brakes on 

the car, and he met defendant during the transaction. McClanahan 

also had seen defendant around the neighborhood, about 20 to 30 

times, in the previous several years. 

Defendant then asked to use the telephone before McClanahan did, 

but McClanahan refused, advising he had to make an important 

call. After completing the call, McClanahan returned home to 

spend the evening with his girlfriend, Rhonda Curry, and her sister 

at the residence McClanahan and Curry shared. 

The next morning, an intruder forced his way into the 

McClanahan–Curry residence, held a gun to McClanahan's head, 

shot him in the leg, threatened to kill Curry, demanded money, and 

eventually left the residence with $40. While he was in the 

hospital, McClanahan told Detective Brenda Walker a man named 

“Richard” shot and robbed him. McClanahan explained he knew 

defendant from the car sale and would provide Detective Walker 

with the man's last name when McClanahan got out of the hospital. 

When police later separately showed Curry and McClanahan a 

photo array of possible defendants, both immediately identified 

defendant and said they were 100 percent certain he was the 

perpetrator. 

On February 3, 2006 the Franklin County Court of Common Pleas 

found defendant guilty, pursuant to jury verdict, of aggravated 

burglary, two counts of aggravated robbery, two counts of 

kidnapping, and felonious assault, all with firearm specifications. 

Pursuant to jury waiver, the court found defendant guilty of 

possessing a weapon while under disability. The court sentenced 

defendant to a total of 23 years. Defendant filed a direct appeal of 

his conviction, raising seven assignments of error. On August 30, 

2007, we overruled all of defendant's assignments of error and 

affirmed the judgment of the trial court. State v. Horton, 10th Dist. 

No. 06AP–311, 2007–Ohio–4309. 

On January 2, 2007, during the pendency of the direct appeal, 

defendant filed a petition, and later an amended petition, to vacate 

or set aside his convictions pursuant to R.C. 2953.21. Although 

defendant's petition raised four claims for relief, the trial court 

determined only the first claim was properly raised in a postconviction petition, as res judicata barred the other three. 

Defendant's first claim for relief asserted his trial counsel was 

ineffective for failing to obtain or present an expert witness on the 

topic of eyewitness identification. On February 2, 2007, the state 

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filed an answer to the petition, disputing all of defendant's claims 

of ineffective assistance of counsel but acknowledging an 

evidentiary hearing was appropriate. 

During the August 27 hearing on his petition, defendant presented 

the testimony of Dr. John L. Tilley. A forensic psychologist who 

received training in eyewitness identification in graduate school 

and in post-doctorate continuing education courses, Dr. Tilley also 

taught forensic psychology at Capital University. Based on Dr. 

Tilley's qualifications as a forensic psychologist, the court allowed 

him to testify as an expert. Both parties questioned Dr. Tilley 

concerning the eyewitness identification testimony he would have 

presented to the jury had he been called in defendant's trial. 

On April 16, 2010, the trial court filed a Decision and Entry 

Denying Motion of Defendant for Post–Conviction Relief. The 

court noted the relevant portions of Dr. Tilley's testimony at the 

evidentiary hearing and concluded “[t]he fact that trial counsel did 

not call an expert to challenge the reliability of eyewitness 

identification [did] not demonstrate ineffective assistance of 

counsel,” as the decision not to call such an expert was a result of 

trial strategy. (Decision, 5.) Accordingly, the trial court did not 

deem defense counsel deficient in not calling an expert on 

eyewitness identification. Nor did the court feel the decision had 

any effect on the fairness of the trial defendant received. Rather, 

the court concluded Dr. Tilley's testimony created “just as many 

questions as it may have answered, if not more.” (Decision 6.) 

II. Ineffective Assistance of Counsel–Failure to Call Eyewitness 

Expert 

Defendant's single assignment of error asserts his trial counsel's 

performance was deficient in failing to present the testimony of an 

expert witness on eyewitness identification, as the decision was not 

a matter of trial strategy. Moreover, because Curry's and 

McClanahan's identifications were the sole evidence linking 

defendant to the crimes, defendant contends his counsel's failure to 

call an expert on eyewitness identification prejudiced him. 

The post-conviction relief process is a collateral civil attack on a 

criminal judgment, not an appeal of the judgment. State v. Steffen

(1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67. “It is a means to 

reach constitutional issues which would otherwise be impossible to 

reach because the evidence supporting those issues is not 

contained” in the trial court record. State v. Murphy (Dec. 26, 

2000), 10th Dist. No. 00AP–233, discretionary appeal not allowed 

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(2001), 92 Ohio St.3d 1441. Post-conviction review is not a 

constitutional right but, rather, a narrow remedy that affords a 

petitioner no rights beyond those the statute grants. State v. 

Calhoun (1999), 86 Ohio St.3d 279, 281, 282, 714 N.E.2d 905. 

Nor does it provide a petitioner a second opportunity to litigate his 

or her conviction. State v. Hessler, 10th Dist. No. 01AP–1011, 

2002–Ohio–3321, ¶ 32; Murphy.

“[A] trial court's decision granting or denying a postconviction 

petition filed pursuant to R.C. 2953.21 should be upheld absent an 

abuse of discretion; a reviewing court should not overrule the trial 

court's finding on a petition for postconviction relief that is 

supported by competent and credible evidence.” State v. Gondor, 

112 Ohio St.3d 377, 860 N.E.2d 77, 2006–Ohio–6679, ¶ 58; State 

v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (noting 

“[t]he term ‘abuse of discretion’ connotes more than an error of 

law or of judgment” and “implies that the court's attitude is 

unreasonable, arbitrary or unconscionable”). 

To prevail on his claim of ineffective assistance of counsel, 

defendant was required to demonstrate (1) defense counsel's 

performance was so deficient he or she was not functioning as the 

counsel guaranteed under the Sixth Amendment to the United 

States Constitution, and (2) defense counsel's errors prejudiced 

defendant, depriving him or her of a trial whose result is reliable. 

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 

N.E.2d 373, paragraph two of the syllabus, cert. denied (1990), 497 

U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768; Calhoun at 289, 714 

N.E.2d 905 (noting the petitioner for post-conviction relief has the 

burden of demonstrating counsel's ineffectiveness, “since in Ohio a 

properly licensed attorney is presumably competent”). 

An attorney's performance is deficient if it falls below an objective 

standard of reasonable representation. A defendant can show 

prejudice resulting from the deficient performance only if “there is 

a reasonable probability that, but for counsel's unprofessional 

errors, the result of the proceeding would have been different.” 

Bradley at 142, 538 N.E.2d 373, quoting Strickland, 466 U.S. at 

694, 104 S.Ct. at 2068. Unless defendant made both showings, he 

failed to demonstrate his convictions resulted from a breakdown in 

the adversary process that renders the result unreliable. Strickland, 

466 U.S. at 687, 104 S.Ct. at 2064. 

A. Counsel's Performance Not Deficient 

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“Judicial scrutiny of counsel's performance must be highly 

deferential,* * * [and] a court must indulge a strong presumption 

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

professional assistance; that is, * * * the challenged action ‘might 

be considered sound trial strategy.’” Id. 466 U.S. at 689, 104 S.Ct. 

at 2065; Bradley at 141, 538 N.E.2d 373. “Generally, ‘the decision 

to forgo an eyewitness-identification expert is a recognized trial 

strategy.’” State v. Mayrides, 10th Dist. No. 03AP–347, 2004–

Ohio–1623, ¶ 25, discretionary appeal not allowed, 103 Ohio St.3d 

1426, 814 N.E.2d 489, 2004–Ohio–4524, quoting State v. Keeling, 

1st Dist. No. C–010610, 2002–Ohio–3299, ¶ 8; see also State v. 

Fisk, 9th Dist. No. 21196, 2003–Ohio–3149, ¶ 9, discretionary 

appeal not allowed, 124 Ohio St.3d 1478, 2010–Ohio–354 

(observing “an attorney's decision not to request * * * appointment 

of an expert witness to testify on a particular issue [is a] matter[ ] 

of trial strategy”); State v. Samatar, 152 Ohio App.3d 311, 787 

N.E.2d 691, 2003–Ohio–1639, ¶ 90, citing State v. Phillips (1995), 

74 Ohio St.3d 72, 85, 656 N.E.2d 643; State v. Williams (1991), 74 

Ohio App.3d 686, 694, 600 N.E.2d 298 (stating “[d]ebatable 

strategic and tactical decisions may not form the basis of a claim 

for ineffective assistance of counsel, even if a better strategy had 

been available,” as the “decision of whether to call a witness is 

generally a matter of trial strategy”). 

Defendant contends Mayrides does not apply here, because the 

trial court in Mayrides did not hold an evidentiary hearing on the 

petition for post-conviction relief and determined Mayrides should 

have raised the issue of identification in the direct appeal. 

Although Mayrides determined the issue concerning the 

photographic array should have been raised on direct appeal, it 

addressed the issue of expert testimony on eyewitness 

identification and concluded Mayrides did not demonstrate his 

attorney “had no objectively reasonable basis for failing to retain 

an eyewitness-identification expert.” Id. at ¶ 26, 600 N.E.2d 298. 

Mayrides further noted that, not only did counsel “thoroughly 

cross-examine[ ] the witnesses regarding their identification of 

appellant,” but Mayrides did not demonstrate that the failure to 

retain an expert resulted in prejudice. Id.; see Samatar at ¶ 90 

citing State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150, 

2001–Ohio–1580 (observing “the failure to call an expert and 

instead rely on cross-examination does not constitute ineffective 

assistance of counsel”). 

Here, contrary to defendant's contentions, his trial counsel 

thoroughly cross-examined the victims on their ability to view the 

intruder. In cross-examining McClanahan, defense counsel asked if 

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he saw the intruder's face, causing McClanahan to state the man 

“had a hood drawn all the way up” which allowed McClanahan to 

see only the perpetrator's eyes and eyebrows. (Tr. 69–70.) 

Similarly, defense counsel's cross-examination of Curry caused her 

to state that, even though she saw none of the perpetrator's face 

except his eyes, she nonetheless was “a hundred percent sure it was 

him.” (Tr. 98.) 

In closing argument, defense counsel employed those facts, telling 

the jurors that if they could “determine that a reliable identification 

can be made beyond a reasonable doubt of a suspect whose face 

[was] covered by the hood of a sweat shirt except for his eyes, if 

you determine that is a positive identification, * * * you must live 

with that determination.” (Tr. 301.) Counsel reminded the jury no 

fingerprints, DNA evidence, or gun connected defendant to the 

crime, making the state's case “strictly an I.D. case of a man who 

has his face covered with a sweat shirt and only his eyes showing.” 

(Tr. 303.) 

Since the decision to call an expert witness falls under the ambit of 

counsel's trial strategy, defendant's attorney cross-examined the 

witnesses on each one's ability to see defendant, and counsel 

argued the problems inherent in their identifications in his closing 

argument, we cannot say defense counsel's decision not to call an 

expert on eyewitness identification fell below an objective standard 

of reasonable representation. State v. Sallie, 81 Ohio St.3d 673, 

675, 693 N.E.2d 267, 1998–Ohio–343, citing State v. Thompson

(1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (stating “trial counsel 

is entitled to a strong presumption that all decisions fall within the 

wide range of reasonable professional assistance,” including the 

decision to present expert testimony). 

Defendant nonetheless claims his attorney's decision not to call an 

expert witness was not trial strategy, because counsel did not 

discuss with him the possibility of retaining an expert to testify 

about eyewitness identification issues. (Aug. 27, 2008 Tr. 97.) 

Defendant, however, points to no authority indicating an attorney's 

failure to discuss with his or her client whether to call an expert 

witness removes the decision from the ambit of trial strategy. Cf. 

Prof.Con.R. 1.4(a)(2) (stating that in communication between a 

lawyer and client, the lawyer should “ reasonably consult with the 

client about the means by which the client's objectives are to be 

accomplished”). Whatever the ethical considerations may be if 

counsel did not discuss the matter with defendant, the decision, in 

the circumstances of this case, remains one of trial strategy. 

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The trial court did not err in concluding counsel's failure to call an 

expert to testify regarding eyewitness identification was a tactical 

decision that did not fall below an objective level of reasonable 

representation. 

B. Counsel's Performance did not Prejudice Defendant 

Had the expert defendant presented at the evidentiary hearing on 

his petition for post-conviction relief testified at trial, the witness 

would have been permitted to testify generally as to “the variables 

or factors that may impair the accuracy” of typical eyewitness 

identification. State v. Buell (1986), 22 Ohio St.3d 124, 489 N.E.2d 

795, paragraph one of the syllabus, cert. denied, Buell v. Ohio

(1986), 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165. The expert 

would not have been allowed to testify “regarding the credibility of 

the identification testimony of a particular witness * * *, absent a 

showing that the witness suffers from a mental or physical 

impairment which would affect the witness' ability to observe or 

recall events.” Id. at paragraph two of the syllabus. 

Dr. Tilley identified four areas about which he would have 

testified: (1) the general unreliability of eyewitness identification, 

(2) how eyewitness competency is unrelated to eyewitness 

accuracy, (3) the possibility of “transference of memory,” and (4) 

issues pertaining to photo arrays. (Tr. 55–56.) Although the 

witness stated “research indicates that eyewitness testimony is to a 

certain extent inherently unreliable,” he testified eyewitness 

identification can be good and “[t]here are plenty of cases in which 

it was reliable.” (Tr. 57, 82.) 

Concerning the first two areas, Dr. Tilley stated “witnesses tend to 

be overly confident in their reports,” so “[a]n individual making a 

misidentification is just as confident in their choice as a person 

making a correct identification.” (Tr. 59–60.) The witness opined 

“confidence inflation” occurred here, noting McClanahan initially 

could remember only defendant's first name, but later said he was 

100 percent certain of the suspect's identity. (Tr. 61.) 

Apart from whether Dr. Tilley's specific testimony regarding 

McClanahan would have been admissible, the trial court pointed 

out the flaw in the witness' logic because McClanahan, while at the 

hospital, identified the man who shot him as “Richard,” the person 

to whom his niece had sold a car several years back. McClanahan 

offered he could retrieve the last name for the detective once he 

was out of the hospital. (Tr. 83–84.) As the trial court observed, the 

witness obviously knew the man he was trying to identify, and 

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McClanahan's inability to remember the last name was a 

“ludicrous” basis on which to say McClanahan initially was not 

confident in identifying defendant. (Tr. 84.) 

The third point of Dr. Tilley's testimony addressed memory 

transference, which occurs where “an individual believes they're 

recalling someone from a particular situation, when in essence they 

are actually recalling them from a different situation.” (Tr. 63.) 

According to Dr. Tilley, the individual's memory confuses the two 

events because they are similar in nature. Dr. Tilley stated factors 

influencing memory transference include a “high degree of stress” 

that occurred with respect to the event. (Tr. 64.) He also included 

factors such as whether “the crime or situation occurred briefly, if 

there was relatively little time, or a good viewpoint from which to 

make an identification, and also that there be some moderate to 

minimal familiarity with the individual.” (Tr. 64.) Although Dr. 

Tilley testified being shot would be the high stress type of situation 

that would lead to memory transference, he also admitted some 

studies indicated a high degree of stress actually increases the 

likelihood a witness will correctly identify a suspect. 

The doctor also admitted that the longer a person spends with the 

suspect, the more likely the identification will be good. (Tr. 87.) 

Here, the robbery lasted between 15 and 25 minutes, so it was not 

a brief encounter that would increase the likeliness of memory 

transference. (Tr. 99.) Dr. Tilley also agreed the closer the witness 

was to the perpetrator and the greater the lighting in the area, the 

more likely the witness made an accurate identification. (Tr. 88.) 

Here, the robbery occurred in the morning, and the two victims and 

the robber were all confined to the front room of the house, leaving 

little distance between the victims and the perpetrator. (Tr. 46, 50.) 

As to the fourth point of his testimony concerning the photo array, 

Dr. Tilley testified “misidentification tends to increase when, as 

here, photo line-ups are presented simultaneously” because, even if 

the culprit's picture is not in the array, the witness is inclined to 

pick the person whose appearance is closest to the culprit. (Tr. 71–

72.) Dr. Tilley, however, admitted he had limited experience in 

working with crime victim eyewitness identifications. He further 

acknowledged college students conducted most of the studies he 

cited, and a “college student taking part in an event may have a 

different perspective than a crime victim testifying under oath with 

respect to an event.” (Tr. 87.) 

As a result, Dr. Tilley's testimony on the factors or variables that 

may have influenced McClanahan's and Curry's identifications 

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demonstrated potential problems in the identifications but also 

highlighted factors demonstrating the potential strengths of their 

identifications. Indeed, various aspects of Dr. Tilley's testimony 

may have been as helpful to the state as to defendant. 

In the final analysis, mistaken identity was highly unlikely because 

the victims and defendant knew each other. See State v. Crosby, 

186 Ohio App.3d 453, 928 N.E.2d 795, 2010–Ohio–1584, ¶ 2–3, 

30, 41, appeal not allowed, 126 Ohio St.3d 1549, 2010–Ohio–3855 

(noting expert testimony on eyewitness identification may have 

confused the jury where mistaken identity was unlikely because 

the victim and defendant knew each other and, when the victim 

came out of a coma, he immediately identified the defendant as the 

gunman). Dr. Tilley admitted a witness will more easily identify 

someone he or she knows than a stranger, and the longer the 

witness has known someone, the more easily he or she will identify 

them. (Tr. 91–92.) The victims here met defendant several years 

before the incident, and both testified they were familiar with 

defendant from seeing him around the neighborhood. (Tr. 55, 73, 

99, 100–01.) Indeed, defendant testified he would readily 

recognize McClanahan or Curry, suggesting the reverse also would 

be true. The testimony supports that conclusion, as Curry and 

McClanahan arrived at the determination that defendant was the 

perpetrator independent from one another. 

Finally, other factors beyond eyewitness identification connected 

defendant to the crime. McClanahan testified that during the 

robbery the perpetrator said, “You just got paid yesterday. Get that 

god damn money.” McClanahan told him he did not have the 

money, and the intruder retorted, “You got [sic] damn lie, you 

know where that money at. * * * Where is your telephone now, 

huh? Where is your telephone at?” (Tr. 49.) The perpetrator thus 

referred during the robbery to the previous day's comments about 

McClanahan's money and the pay phone, and he even used some 

of the same words the men exchanged the prior day. 

McClanahan also testified that, apart from physical features, he 

was able to identify defendant on the sound of his voice, which he 

recognized from the previous day's encounter with defendant. (Tr. 

59, 70.) McClanahan further noted the perpetrator wore the same 

clothes defendant wore the day before at the phone booth. (Tr. 57.) 

As a result, the robber's voice, clothes, and words, compared to 

defendant's voice, clothes, and words from the day before at the 

phone booth, demonstrate that even if defense counsel called an 

expert witness to testify on eyewitness identification, the jury's 

verdict would have been the same. The trial court did not err in 

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determining defendant suffered no prejudice from his attorney's 

decision not to call an expert to testify to eyewitness identification. 

Accordingly, we overrule defendant's sole assignment of error and 

affirm the trial court's denial of defendant's petition for postconviction relief. 

State v. Horton, 2011 WL 1049531, at *1-7. 

The right to counsel guaranteed by the Sixth Amendment is the right to effective 

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for 

reviewing a claim of ineffective assistance of counsel is twofold: 

First, the defendant must show that counsel's performance was 

deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the “counsel” 

guaranteed the defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance prejudiced the 

defense. This requires showing that counsel's errors were so 

serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because of the difficulties inherent in 

making the evaluation, a court must indulge a strong presumption that counsel's conduct falls 

within the wide range of reasonable professional assistance; that is, the defendant must overcome 

the presumption that, under the circumstances, the challenged action might be considered sound 

trial strategy.” Strickland, 466 U.S. at 689. 

To establish prejudice, a petitioner must show that there is a reasonable probability that, 

but for counsel's errors, the result of the proceedings would have been different. Id. at 694. “A 

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 

697. Because Petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective 

assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it 

need not consider the other. Strickland, 466 U.S. at 697. 

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Petitioner argues that the state appellate court unreasonably concluded, in view of the 

facts, that counsel’s decision not to call an expert on identification testimony was strategic. 

Petitioner complains that the state appellate court failed adequately to address counsel’s lack of 

investigation, his filing of a “boilerplate” motion to suppress identification testimony, and his 

failure to discuss the decision regarding whether to obtain an expert on eyewitness identification 

with Petitioner prior to trial. In support of his argument that defense counsel improperly failed to 

investigate prior to reaching reasonable strategic decisions prior to trial, Petitioner argues that 

McClanahan lied when he testified he had not met with Petitioner prior to trial, and defense 

counsel failed to cross examine him on this issue.3

 

The Magistrate Judge is not persuaded that either the filing of a “boilerplate” motion to 

suppress or counsel’s cross-examination of McClanahan reveal an improper failure to investigate 

by defense counsel, particularly in regard to counsel’s decision not to call an expert in witness 

identification. Neither the transcript of the hearing on the motion to suppress evidence, nor the 

trial transcript reflect that defense counsel was unprepared or performed in a constitutionally 

ineffective manner in cross examination of prosecution witnesses. Defense counsel cross 

examined McClanahan on his failure to obtain a taped recording of Petitioner’s “so-called” offer 

to pay him $3,000.00 for telling police and the fact that the man who entered McClanahan’s 

home had his “hood drawn all the way up” such that McClanahan was unable to obtain a good 

view of the robber’s entire face. Trial Transcript, PageID #212-13. 

                                                            

3

   In support of this argument, Petitioner refers to an affidavit of his cousin, LaKeon Horton, in which LaKeon 

indicates that during the summer of 2005, he was in a car with Petitioner when McClanahan stopped to talk with 

Petitioner, and thereafter met them at Petitioner’s house. According to LaKeon, McClanahan told Petitioner he 

would tell police Petitioner was not the armed robber if Petitioner paid him. Petitioner refused. Affidavit of LaKeon 

Horton, see Exhibit 19 to Return of Writ, PageID #981-82. 

McClanahan, however, testified that after he was robbed, he saw Petitioner at a gas station. Petitioner denied being 

the perpetrator of the offense, and offered to pay McClanahan $3,000.00 if McClanahan would tell police they had 

the wrong man. Trial Transcript, PageID #208. McClanahan refused and told police about the incident. PageID 

#208-209. On cross-examination, McClanahan denied meeting Petitioner at his home. PageID #211. 

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“With regard to the failure to call an expert on eyewitness testimony, federal courts have 

held that a defense attorney's cross examination of eyewitnesses is a sufficient method of 

attempting to deal with the issues presented by eyewitness testimony.” See Parker v. Curtin, No. 

09-cv-13329, 2010 WL 4940011, at *4 (E.D. Mich. Nov. 30, 2011)(citing Davenport v. Curtis,

2008 WL 4534198, at *3 (E.D. Mich.); Madrigal v. Bagley, 276 F.Supp. 744. 791–92 (N.D. 

Ohio 2003), Ferensic v. Birkett, 501 F.3d 469, 483–84 (6th Cir. 2007); Tipton v. United States, 

No. 96–5026, 1996 WL 549802 at *1–2 (6th Cir. 1996)). “ ‘No precedent establishes that 

defense counsel must call an expert witness about the problems with eyewitness testimony in 

identification cases or risk falling below the minimum requirements of the Sixth Amendment.’” 

White v. Smith, No. 1:10-cv-23, 2011 WL 9688085, at *10 (N.D. Ohio Nov. 16, 2011)(quoting 

Perkins v. McKee, 411 Fed.Appx. 822, 833 (6th Cir. 2011); see also Dorch v. Smith, 105 Fed. 

Appx. 650, 653 (6th Cir. 2004)(failure to call expert witness on eyewitness identification did not 

constitute constitutionally ineffective assistance of counsel where counsel presented alibi 

witnesses and cross examined identifying witnesses); Tipton v. United States, No. 96–5026, 1996 

WL 549802, at *1–2 (6th Cir. Sept.1996)(no prejudice under Strickland from failure to hire 

expert in eyewitness identification). 

For the reasons well detailed in the decision of the Ohio Court of Appeals, the Magistrate 

Judge likewise agrees that Petitioner has failed to establish he was denied effective assistance of 

counsel based on his attorney’s failure to present testimony on an expert regarding eyewitness 

identification. This claim fails to provide a basis for federal habeas corpus relief. 

Claim one is without merit. 

 

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Claim Two: 

In claim here, Petitioner asserts that his sentence violated Blakely v. Washington, 542 

U.S. 296 (2004). Specifically, Petitioner contends that the trial court improperly used 

Petitioner’s prior criminal record as a basis for imposing an increased sentence, and that the rule 

of lenity warranted a lesser sentence. See Traverse. Petitioner did not raise these precise 

arguments in the Ohio Court of Appeals. Rather, he argued that the Ohio Supreme Court’s 

decision in Foster was unconstitutional, and that application of Foster violated the Ex Post Facto 

Clause. Therefore, it appears that claim three is procedurally defaulted. Respondent did not 

raise this argument, however, and the Magistrate Judge will therefore address the merits of 

Petitioner’s claim.4 

Petitioner's assertion that his sentence violated the “rule of lenity,” fails to present an 

issue of constitutional dimension that is appropriate for federal habeas corpus relief. “[T]he rule 

of lenity is merely a canon of statutory interpretation” and nothing in the Constitution requires 

the state courts to apply this rule in interpreting state statutes. See Featherkile v. Warden, No. 

1:07–cv–01023, 2010 WL 546118, at *15–16 (S.D. Ohio Feb.12, 2010) (citations omitted). 

“‘Application of the rule of lenity ensures that criminal statutes will provide fair warning’” 

regarding illegal conduct. Lurie v. Wittner, 228 F.3d 113, 126 (2nd Cir.2000) (quoting Liparota 

v. United States, 471 U.S. 419, 427 (1985)). Here, Petitioner does not contend, and the record 

does not reflect, that the statutes under which he was convicted and sentenced was either 

unconstitutionally vague or otherwise failed to provide him fair notice at the time of his 

                                                            

4 As a general rule, procedural default is an affirmative defense that must be raised by the state at 

the first possible opportunity, or it will be waived. Trest v. Cain, 522 U.S. 87, 89 (1997) (State's 

failure to raise procedural default normally constitutes waiver of the default); Gray v. 

Netherland, 518 U.S. 152, 166 (1996) (procedural default is normally an affirmative defense that 

will be waived if not raised). 

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conviction. See id. (citing Poole v. Wood, 45 F.3d 246, 249 (8th Cir.1995); Sabetti v. Dipaolo, 16 

F.3d 16, 19 (1st Cir.1994)). Both before and after Foster, Petitioner had warning of the penalties 

he faced as well as the trial court's discretion to impose these penalties. Thus, the “rule of lenity” 

fails to provide him relief. 

As to Petitioner’s contention that his sentence violates Blakely because the trial court 

considered his prior criminal record in imposing sentence, this claim likewise fails. A sentencing 

court does not violate Blakely by considering a criminal defendant’s prior record when imposing 

sentence. “Other than the fact of a prior conviction, any fact that increases the penalty for a 

crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond 

a reasonable doubt.” Blakely v. Washington, 542 U.S. at 301 (quoting Apprendi v. New Jersey, 

530 U.S. 466, 490 (2000)). 

Claim two is without merit. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. 

Procedure on Objections: 

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

(14) 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 

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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, 

106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

s/Mark R. Abel 

United States Magistrate Judge 

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