NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 11a0270n.06
No. 08-4727
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT TONY R. GROSS, Petitioner-Appellant,

v. W A R D E N , L E B A N O N C O R R E C T IO N A L I NSTI TUTI ON, Respondent-Appe llee. ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OHI O

Be fore : KENNEDY

and MARTI

N, Circuit J udg es; MURPHY, District J udg e. *

STEPHEN J

. MURPHY, I I I , District J udg e. Tony Gross appea ls the judgme nt of the district court de ny ing his pe tition for a writ of ha beas c orpus. We AF F IRM

. I. BACKG ROUND A. Fa cts The Ohio Supreme Court summarized the fac ts as follows:
At around 3:00 a.m. on J uly 12, 1994, four juveniles wer e prepa ring to distribute the morning newspa

per toge ther when they observe d a man who appea red to be using the restroom outside the Certified g as station in South Z anesville, Ohio. The juveniles also noticed a

y ellow ca

r with a blac k stripe on the side pa rked a t the g as station. Whil e making their deliverie s, the juveniles saw the same man drive the y ellow car past them. Suspicious, the j uveniles i n formed Muskingum C ounty Deputy Sheriff Michae l L

utz about the man while on their route. One of the juveniles also tried to memorize the y ellow car ’s license plate number and later wrote it down. At around

T h e H o n o r a b l e S t e p h e n J

. M u r p h y , I I I , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e E a s t e r n D i s t r i c t o f M i c h i g a n , *
s i t t i n g b y d e s i g n a t i o n .No. 08-4272

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4:30 a.m., afte r finishing their paper route, the juveniles returne d to a house near the g as station

. T h er e, they ag ain saw the y ellow car and the same man whom they observe d ear lier at the Certified station. The man proce eded to br eak a lock off the m en ’s restroom door and enter the g as station. One of the juveniles ran inside h i s home and c alled the police to report the br eak- in. Wit hin moments, L ieutenant Michae l L utz arr ived at the g as station. L ieutenant L utz radioe d the pol ice dispatcher a descr iption of t he y ellow car wit h a l i cense plate of “Nor a, Boy , Young ”, 718 - indicating that the plate rea d “NB Y 718.” This was simil ar to the juve nile’s desc ription of the license plate as “ NVB 718.” The juveniles approa ched the g as st ation and wa t ch ed as L ieutenant L utz emer g ed from his police cruiser and walked to the restroom door. The man who had broken into the g as s t at ion came out of the bathroom and went to the front of the station, wher e he threw something awa y that sounded like metal when it hit the g round; the police later rec overe d a met al crow bar. L ieutenant L utz followed the man, who beg an to a

rg ue with the office r. A fig ht e nsued. The de puty sheriff struck the man on the head sever al times with his flashlig ht, but then lost hold of the flashlig ht. As the two men separ ated, L ieutenant L utz rea ched for his g un, say ing “Don’ t make me d o this.” Be fore the office r could retrie ve his wea pon, howeve r, the man g rabbe d L ieutenant L utz’s g un and fired twic e, hitting the de puty sheriff in the head at least once. L ieutenant L utz fell to the g round. As the juveniles watche d, the man then walked up to L ieutenant L utz, pointed the g un at the deputy sheriff ’s head, and fired twice at point-blank rang e. The man then fled in the y ellow car toward Z anesville. One of the juveniles ca lled 911 for a n ambulance

. Severa l passing motorists observe d portions of the incident. One of them, Kar en Wright, wa s driving on May sville Pike on her way to work. As she passed the g as station, Wright not iced L ieutenant L utz and a man fighting

. She slowed d o wn but did not stop, intending to f ind a pay phone and call for help. Wright later informed office rs who ar ri ved on the scene that she had watche d the office r’s assailant for approximately 30 seconds and that she could see his fac e. After hear ing g unfire, Wright turned around in a parking lot down the road and returne d to the g as station. Whil e Wright was waiting in the turn lan e t o enter the g as station, the y ellow car near ly hit her vehic le as it pulled from the g as station and sped a way . At approximately the same time, Shawn J ones was also driving on May sville Pike. He notice d the juveniles in the g as station parking lot and slowed his vehicle w hen he hear d a g unshot. He observe d a man twice shoot L ieut en an t L u tz in the fac e; L ieutenant L utz was partially ly ing on the g round when the shooting occur red. J ones drove to a SuperAmer ica g as station down the ro ad and told the cler k to call 911.No. 08-4272

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After g oing to work to inform his cowor kers that he had to return to the scene , J ones returne d to the Certified g as station and g ave the police his statement. Simi larly , Sherry Fug ate was driving to work when s h e noticed L ieutenant L utz’s police cruiser behind the g as station. Whil e waiting at a traff ic light further down the road, she saw police car s rac ing toward the g as station. She also s aw a y ellow car come from the direc tion of the g as station. As Fug ate sat at a red light, the y ellow car passed her on the rig ht, ran the light, and trave led down Putnam avenue ont o Van Bur en Street, befor e pulling into an all ey behind a baker y . Fug ate saw only one person in the y ellow ca

r. By the time office rs arr ived at the g as stat i o n , L ieutenant L utz had died. A patholog ist from the Fr anklin County Coroner’ s Offic e later deter mined he had died from thre e g unshot wounds to the head.
Ron J ohnson was selling cra ck coca ine that m o rning from his house in Z anesville wh en Gr o s s arr ived i n a y ellow car. The back of J ohnson’s house si ts on the alley into which Fug ate had watche d the y ellow car disappea r. Gross left his car running as he enter ed J ohnson’s house. J ohnson noticed blood running from a cut on Gross’s head and g ave the man a towel to wipe off the blood. Gross then trade d a .9-mm g un that he had for a $50 piece of cra ck. As Gross left the house, he told J ohnson to hide the g un beca

use “it could be life or death.” J ohnson there fore proce eded to clea n the g un of fing erpr ints a

nd to empty approximately eleve n shells from the wea pon. He noticed that the g un had blood on its handle. After subsequently hear ing that Gross had been arr ested and char g ed with murder, J ohnson initially hid the g un under rocks near the M uskingum Ri ver, the n later r etrieve d the wea pon and hid it in the woods near his home. Ba sed on information J ohnson provided, the police eventua lly rec overe d the g un, which wa s stamped with L ieutenant L utz’s unit numbers. Also t hat morning , shortly afte r the shooting of L ieutenant L utz, Villag e of South Z anesville Chief of Police Bob Van Dy ne was g iven the license number that L utz had communicated to the dispatcher and informed that the car was re g istered to Gr oss. Van Dy ne was familiar with Gross and drove to his trailer in South Z anesville. After the dispatcher repe ated the license number, Van Dy ne rea liz ed that the vehicle in the drivewa y was Gr oss’s car . He r adioed f or assistance

. Severa l other deputies arr ived and set up a perimete r around Gross’s trailer. One of the deputies found Gross ly ing in wee ds near his trailer, wea ring only pants with no shirt or shoes. He had a rec ent head injury

. Gross eventua lly surre ndere d. Be cause initial radi o b roadc asts had repor ted that two suspects wer e involved, the deputiesNo. 08-4272

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conducte d a one-minute protec tive swee p of Gross’s trailer to ensure that another suspect wa s not inside. The deputies conducte d a show-up identification. Kar en Wright identified Gross as the man she had observe d fig hting with L ieutenant L utz and later identified Gross’s y ellow car as the y ellow car she saw. Shawn J o n es identified Gross as t he man he saw shoot the deputy

. Only one of the juveniles, h o we v er, was able to selec t only Gross fr om a photo a

rra y of the suspects, althoug h he expressed some unc erta inty

. A second juvenile identified five possible suspects, while another juvenile narr owed t h e photos to three suspects; both g roups i ncluded Gross. The fourth juvenil e wa s unable to identify any one from the g roup of photogr aphs as the man at th e gas station. All four juveniles identified Gross’s car from photogr aphs as the vehicle that they had observe d at the g as station. Sherry Fug ate simil arly identified Gross’s car as the y ellow ca

r that had pa ssed her

. The Muskingum County Gra nd J ury issued a seven- count indictment ag ainst Gross. Counts one and two char g ed ag g rava ted murder, with eac h count car ry ing three death s pecif ications–murder of a police office r, felony murder, and murder to esca p e detec tion for another offe nse–as well as firea rm specific ations. Counts three throug h six char g ed Gross with having committed ag g rava ted ro b b ery ; eac h car ried a prior ag g rava ted felony conviction specific ation and a firea rm specific ation. Count seven char g ed Gross with having had a wea pon under disability and car ried a specific ation of a prior felonious assault conviction. The matter proce eded to jury trial on the first six counts and all the specific ations that wer e befor e the j u ry , and the trial judge subsequently found Gross g uilty of having a we apon while under disability and the re m ai n i ng specific ations. I n addition to imposing terms of confine ment, the tr i al court followe d the jury ’s re commendation and imposed the death pe nalty

. State v. Gross , 776 N.E.2d 1061, 1072-75 ( Ohio 2002) (pa rag raph numbe ring omitted).
B. State Court Proce dural History The proce dural history in the state courts is extensive and complicated. Prior to sentenc ing,
Gross filed a motion for a new trial. He subsequently filed a supplemental memorandum in support,

or in the alterna tive, a second motion for a new trial. The trial court denied the motion. Gross was
sentenc ed to death and three y ear s of actua l imprisonment o n t h e firea rm specific ation, fiftee n to twenty -five y ear s on count three , fiftee n to twenty -five y ear s on count six , and three to five y ear s onNo. 08-4272

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co u nt seven. All wer e to run consec utively

. Represe nted by new counsel, Gross appea led the judgment, asser

ting eig hteen assig nments of err or. The Ohio Court of Appea ls aff irmed the conviction and sentenc e. State v. Gross , No. 96-055, 1999 Ohio App. L EXI S 2500 (Ohio Ct. App. May 24, 1999). Subsequently , the Ohio Supreme Court aff irmed Gross’s conviction but reve rsed his death sentenc e and r emande d for r esente ncing

. Gross , 776 N.E.2d 1061.
On rema nd, the trial court sentenc ed Gross to thirty y ear s t o l ife imprisonment, to run

consec utively to his other sentenc es. Gross appea led, but th en v o l u n t ar ily dismiss ed his appea l.
Gross subsequently filed a motion fo r leave to file a delay ed application to reope n, application to
reope n, and motion to file brief instanter in the Ohio Court of Appea ls. The motion was denied as
unt i m ely

. The Ohio Supreme Court dismiss ed Gross’s subsequent appea l as not involving any substantial constituti onal question.
Gross filed four motions to reope n his a ppeal pursuant to Ohio Appellate Rule 26(B ). The first was dismiss ed by the Ohio Court of Appea ls in April 2000 for failure to comply with Rule 26. The second, fi l ed o n J uly 3, 2000, was dismiss ed by the Ohio Court of Appea ls for lack of jurisdiction beca

use Gross’s appea l of the first motion was pending befor e the Ohio Supreme Court. The third, filed in J anuar

y 2003, was denied for failure to show g ood cause for the untimely filing. The Ohio Supreme Court dismiss ed the appea l as not involving any s u b s t an t ial constitutional question. The four

th was denie d as untimely

. Concurre ntly with his other motions, Gross also filed two petitions for post-conviction relief in state court. The first was denied as barr ed pursuant to the doctrine of res judicata. Gr o s s
appea led, and the appellate court dismiss ed the petition as prema tu re b ec au s e it was filed befor eNo. 08-4272

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rese ntencing

. The Supreme Court denied leave to appea l. I n 2005, Gross filed a second petition for post- co n v iction relief

. The trial court dismiss ed the petition as untimely

. Gross ag ain appea led,

asser ting six assig nments of err or. The Ohio Court of Appe als aff irmed the trial c ourt’s dismissal of Gross’s petition. State v. Gross , No. CT2006-0006, 2006 Ohio App. L EXI S 6852 (Ohio Ct. App.
Dec

. 20, 2006). The Ohio Supreme Court declined further revie w. State v. Gross , 864 N.E.2d 654 (Ohio 2007). C. Fede ral Proce eding s Gross, proce eding pro se , subsequently filed a p et i t i o n for writ of habea s corpus. As amende d, the petition alleg ed the f ollowing a ssignments of e rror : Ex hausted dire ct appe al claims Section I
12-1. This claim involves the uncon stitut ional one-ma n show-up identification that took place

. 12-2. This g round for

relief is premised on fa

ulty jury instructions. 12-3. This g round for

relief is premised upon unconstitutional juror misconduct.
12-4. This g round for relief is premised upon unconstitutional photo arr ay identification and the testimony

which followe d. 12-5. This g round for

relief is premised [on the] ineffe ctive assistanc e of tria l counsel. 12-6. This g round for relief is p re m i s ed u p on the remaining claims prese nted i n the di rec t appea ls brief to the Ohio Supreme Court . . . .
Ex hausted 26(B ) claims to reope n the direc t Appea l[ ] and motion to the Ohio Supreme Court to replac e appe llate counse lNo. 08-4272

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Section I I

. 12-7. This claim is premised upon pre- trial leg al conflicts of interest the petition[ er] had with trial counsel and irrec oncilable differ ence s: the failure of appellate counsel to document and prese nt this i ssue as a

n assig nment of er

ror on dire ct appe al.
12-8. The petitioner

. . . would submit this petition’s Ap p endix E, F, and G as claims for revie w, and has motioned this Court for the appointment of counsel and to prese rve the rig ht to amend this petition with counsel if it’s appointed since eac h of t he afor ementioned petitions have been exhausted in the state courts excepting for App. G which has sit [si c] in the Fif th District Court since Novembe r 21st, 2003, a total of twe nty -six months. Unexhausted 26(B ) applica tion to reopen the dire ct appe als and de lay ed new trial motion Section I I I
12-9. The petitioner would move to have the unexhausted delay ed 26(B ) appli cation to reope n the appe al[] . . . considere d as his (12-9) g round for appea l.
12-10. The petitioner would move to have his delay ed application for a new trial, (see App. H), c onsidered a s his [ tenth] ground[] for relief. Subsequently , Gross filed a reque st to further amend the petition to include the following additional claims:
12-11. The petitioner would move to have his 1st R.C. 2953.21 p o s t [conviction] petition . . . considered a s his [ eleve nth] g round[] for r elief.
12-12. The petitione r wo u l d move to have his 2nd R.C. 2953.21 post [conviction] petition . . . considered a s his [ twelfth] gr ound[] for r elief.
12-13. The petitioner would move to have his rese ntencing trial issues and ap p eal claims (see Appendixes [sic] P throug h W), c onsidered a s his [ thirteenth] gr ound[] for r elief.
A mag istrate judge g rante d Gross’s reque st to amend the petition to include claims eleve n, twelve, and thirteen, but rec ommended that the claims be dismiss ed as proce durally defa ulted. The
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proce durally defa

ulted or for lack of merit. Over Gross’s objections, the district court adopted and aff irmed the mag istrate judge ’s repor t and rec ommendation. Gross v. Jack son , No. 06-00072, 2008
U.S. Dist. L EXI S 84831 (S.D. Ohio Oct. 21, 2008). Gross filed a motion to alter o r am en d t he judgme nt, which the district cour t denied. The district court declined to issue a cer tificate of appea lability

. Subsequently , we g rante d

a ce rt ificate of appealability on all claims that wer e raised i n Gross’s § 2254 petition. On appeal, Gross, throug h counsel, asser ts: 1) juror misconduct; 2) state court err or in failing to g rant substitut e counsel who would enter a plea of Not Guilty by Reason of I nsanity (“N GRI ”) or to a ddress Gross
reg arding conflicts with trial counsel about the p l ea or, alterna tively , state court err or in not concluding that Gross was denied eff ective assistance of trial counsel for failure to raise a NGRI plea and of appellate counsel for failure to raise the issue on appea l; 3) unconstitutional phot o array identification, and 4) unconstitutional show-up identification. 1
II. ANALYSIS
We first deal with the first and second claims raised by Gross throug h counsel. The Warden

asser ts that Gross forf

eited these claims by not raising them below and that in any event, the claims

are proce durally defa

ulted. Be cause resolution of the forf eiture issue depends in part on the failure
to proper ly raise the claims in state court, we will consider the issue o f p ro ce d ural defa ult first.
Fo llowing the proce dural defa ult analy sis, we consider the merits of the non-def aulted claims of unconstitutional identification.

Gross subsequently submitt ed a supplemental pro se brief. We p ermitted the Warden to 1 respond to the supplemental brief. After revie w, we find that the claims lack merit. Moreove r, we note that Gross wa s repr esente d by competent c ounsel.No. 08-4272

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A. Proce dural De fault The Warden asser

ts that Gross’s claim for juror m i s co n d u ct an d for trial court err or are
proce durally defa

ulted. Gross contends that the issues wer e proper ly raised, but ignor ed by both the
state cour ts and the fe dera l district court.
1. L eg al Standard A federa l habea s petitioner seeking relief from state imprisonment must first ex haust state

co u rt re m ed ies. 28 U.S.C. § 2254(b)( 1). To comply with the exhaustion doctrine, the petitio n er
must fairly prese nt the “substance ” of his fede ral habea s claim to t h e s t ate courts so that the state j u diciary has t he first opportunity to hear the claim. Lyons v. Stovall , 188 F.3d 327, 331 (6th Cir. 1999). The petitioner must prese nt both the fac tual and the leg al bases of the claim. Hicks v. Straub , 377 F.3d 538, 552 (6th Cir. 2004). I n other words, a petitioner must prese nt “the same claim under the same the ory ” to the state c ourt. Id . at 552-53 (citation and internal quotation marks omi tted).
I t is not sufficie nt that all the facts nece ssary to support the federa l claim were before the court or that the petitioner made a “somewha t simil ar” state-law claim. Anderson v. Harless , 459 U.S. 4, 6 (1982) ( per c uriam) ( citing Picard v. Connor , 404 U.S. 270, 276-77 (1971))

. I f a petitioner fails to exhaust his claims, but still has an avenue open by which to do so, his petition is subject to dismiss al for failure to exhaust state reme dies. See 28 U.S.C. § 2254(b)( 1)(A)

. I f the petitioner may no longe r prese nt his claims to a state court beca use of a proce dural defa

ult, the petitioner has also forf

eited the claims for purposes of fede ral habea s revie w absent a showing of
“ca use” a nd “pre judice.” McM

eans v. Brigano , 228 F.3d 674, 680 (6th Cir. 2000)

. The e x istence of cause “ordina

rily turn[s] on whether the prisoner can show that some objective fac tor external toNo. 08-4272

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the defe nse impeded [t he defe nse’s] eff orts to comply with the State’s proce dural rule.” Murray v. Carrier , 477 U.S. 478, 488 (1986). For example, a petitioner could demonstrate cause by showing that “the fac tual or leg al basis for a claim was not rea sonably av ai lable” or that there was “some interfe renc e by officia ls.” Id

. (citation omitted). To demonstrate prejudice , “[t] he habea s petitioner
must show not mere ly that the err ors at trial cre ated a possibili ty of prejudice , but that they worke d
to his actual and substantial disadvantag e, infec ting his en t i re t ri al with err or of constitutional dimensions.” Id

. at 494 (empha sis in orig inal) (alterations, cit at i o n , an d internal quotation marks omitted).
A petitioner can proce durally defa ult a claim in two way s. W illiams v. Anderson , 460 F.3d 789, 806 (6th Cir. 2006). First, he may fail “to comply with state proce dural rules in prese nting his claim to t h e appropriate state court.” Id

. The Six th Circuit applies a four- part test to deter mine whether a claim has been proce durally defa ulted in this way : 1) whether there is a state proce dural rule applicable to the peti t i o n er ’s cl aim , with which he has failed to comply ; 2) whether the state
courts ac tually

enfor ced the state proc edura l sanction; 3) whethe r the state pr ocedur al forf eiture is

an adequate and independe nt state g round on which the state can rely to fore close revie w of a fede ral

co n s tituti onal claim; and 4) if prong s one throug h three are satisfied, whether the petitioner h as demonstrated cause for his f ailure to c omply and actua l pr ejudice resulting from the constitutional

err or. Maupin v. Smith , 785 F.2d 135, 1 3 8 (6 t h Cir. 1986). “[A] proce dural defa ult does not bar consideration of a fede ral claim on habea s cor p u s re v i ew unless the last state court rende ring a

rea soned opinion in the case ‘cle arly and expressly states that its judgme nt rests on a state proce dural bar.’ ” Thompson v. Bell , 580 F.3d 423, 437 (6th Cir. 2009) (quoting Harris v. Ree d , 489 U.S. 255,No. 08-4272

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263 (1989))

. Second, a petitioner may defa ult by failing “to raise a claim in state court, and pursue that claim throug h the st at e’ s o rd i nary appellate revie w proce dures.” Id

. (interna l citations and quotation marks omi tted); see also Deitz v. Money , 391 F.3d 804, 808 (6th Cir. 2004) (“A federa l
court i s al s o b ar re d from hear ing issues that could have been raised in the state courts, but wer e not[ .]”). Under Ohio law, a defe ndant may not raise a claim in post-conviction proce eding s that could have been raised on direc t appea l but was not. W illiams , 460 F.3d at 806 (citing Engle v.Issac , 456
U.S. 107, 125 n.28 (1999))

. “Thus, i f an Oh i o p et itioner failed to raise a claim on direc t appea l, which could have been raised on direc t appea l, t h e claim is proce durally defa ulted.” Id

. Direc t
appea l includes revie w by a state supreme court with power s of discretiona ry re v i ew . Beldum v. Ree se , 541 U.S. 27, 29 (2004).
2. J uror Misconduc t Gross raises here an alleg ed “third instance” of juror misconduct invo lv in g ju r o r Ry a n N o lan. After trial, Nolan informed defe nse counsel, Gre g ory Mey ers, that Nolan had discussed the case with his pa rents eac h night during the trial. Nolan fa vorably commented on a number of the defe nse’s 2 theories, and told defe nse counsel that he would have found Gross not g uilty but for information he knew a bout the case befor e trial. Id

.

There wer e two other inst ance s of allege d juror mi sconduct which are not before us. The 2 first involved alleg ations that Nolan discussed the case at a picnic. The state trial court conducte d a hear ing on the issue, but did not dismiss Nolan or g rant a mistrial. The issue was prese nted to the district court, but is not raised here

. The second i nvolv ed the alterna te j urors’ participation i n the penalty phase of delibera

tions. This instance of

juror misconduct is moot beca use the Ohio Supreme Court sustained the er

ror a nd vaca ted Gross’s de ath sentenc e. Gross , 776 N.E.2d at 1100.No. 08-4272

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Gross raised this issue in his supplemental memorandum in support of his motion for a new trial filed post-verdic t, but befor e sentenc ing. The motion was supported only by an aff idavit from Mey ers. Id

. The trial court denied the motion on the g rounds that there wer e no aff idavits submitt ed
to support the motion that “would show any ty pe of independe nt evidenc e or corr oborating evidenc e in rega rds to the juror misconduct.” The trial court appar ently relied on Ohio Rule of Evidence 606(B ), otherwise known as the aliunde rule, which states that “a juror may testify on the question whether extraneous prejudicia l information was improperly broug ht to th e ju r y ’ s a tt e n ti o n o r whether
any outside influence was improperly broug ht to bear on any juror, only afte r some outside evidenc e of that act or event has been prese nted.” All that Gross prese nt ed wa s hear say in the form of Mey ers’ s aff

idavit. The Warde n arg

ues that this claim is proce durally defa ulted and we ag ree . Be cause Gross

never raised the claim on direc t revie w before the Ohio Court of Appeals and S upreme Court, his claim is proce durally defa ulted. See Anderson , 460 F.3d at 806. Gross’s arg uments do not persua de us otherwise. Gross i ncluded in his appea l to the Ohio Court of Appea ls the claim that juror mi sconduct denied hi m d u e p rocess and a fair trial in violation of the Fifth, Six th, Eig hth, and Four teenth Amendments, as well as Article I , Sections 2, 9, 10, and 16 of the Ohio Constit ution. He contends that he preserve d the claim of the a lleg ed third instance of juror misconduc t by stating in his brief that he “ra ised the issue of jury misconduct in his Motion for a New Trial which the court summarily

overr uled without taking evidenc e,” and by eng ag ing in a discussion o f Oh i o R ule of Evidence 606(B ), the aliunde rule, a nd exceptions to the aliunde rule.No. 08-4272

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Although Gross’s brief to the Ohio Court of Appeal s d i d m ake passing ref ere nce to his Motion for a New Trial (which contained the claim he prese nts now), the brief itself discussed only the first and second instances of alleg ed juror misconduct, not the third, which is the one now befor e

us. The Supreme Court has held that “ordina rily a state prisoner does not ‘fa irly prese nt’ a claim to

a state court if that court must rea d bey ond a petition or a brief (or a simil ar document) that does not aler t it to the prese nce of a fede ral claim in or der to f ind suc h materia l.” Baldwin , 541 U.S. at 32.
Fur ther, “the exhaustion doctrine require s a habea s applicant to do more than scatter some makeshift needle s in the hay stack of the state cour t rec ord.” Martens v. Shanon , 836 F.2d 715, 717 (1st Cir. 1988). Rather, the petitioner must prese nt the g round relied upon “fa ce- up and square ly ; the fede ral question must be plainly define d.” Id .; McNair v. Campbell , 416 F.3d 1291, 1303 (11th Cir. 2005) (citing Martens ); Mallory v. Smith , 27 F.3d 991, 995 (4th Cir. 1994) (same)

. Thus, Gross’s passing ref ere nce to his motion for a new trial did not sufficie ntly raise the claim of the third instance of juror misconduct. Moreove r, Gross’s discussion of Rule 606(B ) and the aliunde ru l e focuse d on the second instance of

juror misconduct. Thus, Gross failed to prese nt both the fac tual basis for the third instance of juror misconduct and the leg al theory on which it r ested to the Ohio Court of Appea ls. Hicks , 377 F.3d at 552 (finding that petitioner must prese nt both leg al and fac tual bases of a claim to state court)

. Gross also failed to r aise the claim to the Ohio Supreme Court. He arg ues that he proper ly raised the claim in his direc t appea l to the Ohio Supreme Court by asser tin g i n h i s Fo u rt eenth Assignme nt of err or that:No. 08-4272

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A capital defe ndant is entitled to a fair and reli ab l e d et ermination of his g uilt and sentenc e by a jury that is proper ly instructed and that follows the Court’s instructions wher e the jury ignor es the Court’s admonitions and discusses the case outside of the j u ry room and wher e jurors intimi date other jurors there is a denial of due proc es s and a fair trial in violation of the Fifth, Six th, Eig hth, and Four teenth Amendments, as we ll as Article 1, Sec tions 2, 9, 10, and 16, of the Ohio Constituti on. Although the assig nment of err or ref ere nces jurors discussing the case outside of the jury room, the body of Gross’s brief discusses only the first and second instance of juror misconduct. As a result, the court confine d its analy sis to those two incidents. Gross , 776 N.E.2d at 1 0 9 3

. Presenting the
state court with part of his juror misconduct claim did not prese rve the issue of t h e alleg ed third instance of juror misconduct now befor e us. See, e .g. , W ong v. Mone

y , 142 F.3d 313, 321- 22 (6th Cir. 1998) (finding ineffe ctive assistance of counsel claim proce durally defa ulted wher e petitioner’s
arg ument in state court relied upon differ ent grounds than arg ued in hab ea s p roce eding s); Pillett e

v. Foltz , 824 F.2d 494, 497-98 (6th Cir. 1987) (holding that the peti t i o n er fa i l ed to exhaust state

reme dies for all ineffe ctive assistance of counsel claims wher e state courts wer e prese nted with only

one aspec t of petitioner’s attorney ’s perf ormanc e). Acc ording ly , Gross’s third alleg ed juror misconduct claim is proce durally defa ulted.
We next consider whether Gross has demonstrated cause and prejudice for the defa ult. Aside from arg uing that the third instance of juror misconduct was fairly prese nted to the state court, Gross
arg ues only that the trial court’s summary dismiss al of his motion for a new trial resulted in the failure to establish a clea r rec ord on both the issue itself and i ts impact on the trial. Contrary to Gross’s asser

tions, howeve r, the trial court’s summary dismiss al of the motion in no way preve nted
Gross from raising the claim on direc t appea l. Gross, there fore , has failed to demonstrate cause .No. 08-4272

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Be cause cause has not been demonstrated, we need not consider whether there was prejudice resulting from the defa

ult. Smith v. Murray , 477 U.S. 527, 533 (1986); Long v. McKee n , 722 F.2d 286, 289 (6th Cir. 1983).
3. NGRIPlea
Gross asserts that the t rial court err ed by failing to g rant h i m substitut e counsel or address the conce rns he raised reg arding counsel. He alterna tively arg ues that the “state courts” err ed by not finding that Gross wa s denied both the e ffe ctive assistanc e of tria l counsel for failure to pursue an NGRI plea and the eff

ective assistance of appellate counsel for failure to raise the claim on appea l. Although Gross asser

ts these as alterna tive claims in the same heading , we addre ss them separ ately

. a. Tria l Court Error
Gross ar g ues that the state c ourt ruled contra ry to c lear ly

established fe dera l law by failing
to g rant subst itute counsel who would e nter a plea of NGRI or t o addre ss him reg arding the pl ea. The Warde n say s these cla ims are pr ocedur ally defa ulted. There is disag ree ment about wheth er Gross arg ued befor e the trial court that substitut e counsel should be appointed, but even if he did, he did not proper ly raise the issue on direc t appea l.
Acc ording ly , the claim is proce durally defa ulted.
A revie w of the rec ord demonstrates that Gross raised issues rela ting to a plea of NGRI three times, but alway s in the contex t of i neff ective assistance of counsel claims. Raising the claim of 3
First, Gross raised the claim in his init ial Rule 26(B ) applica tion to reopen a ppeal that the 3 trial attorney “should have consulted both a psy chiatrist – conce rning the possibili ty of a brain injury from prior dr

ug usag e: the eff

ects of the presc ription drug s, and a pha rmac ist, on the likelihood of the claimed eff

ects.” Second, in his motion to amend his fi rs t p et ition for post-conviction relief , Gross assert ed t h at “t ri al counsel failed in its duties to enter a plea of not g uilty by rea son ofNo. 08-4272

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ineffe ctive assistance of counsel for failure to pursue a plea of NGRI does not prese rve the claim that the trial court err ed by failing to g rant substitut e counsel who would enter a plea of NGRI

. See W hite

v. Mitchell , 431 F.3d 517, 526 (6th Cir. 2005) (finding that raising an ineffe ctive assi stance of counsel claim on the basis of failure to raise a Batson challeng e did not prese rve the issue of whether
prosec ution improperly excluded women from jury beca u s e t h e two claims are “ana ly tically distinct”); Prather v. Re es , 822 F.2d 1418, 1421 (6th Cir. 1987) (finding that wher e the diff ere nce betwee n two simil ar claims is a differ ence in leg al theory , exhaustion of one claim is not sufficie nt
to exhaust the other). Whether the trial court err ed is analy tically distinct from the issue of whether there was ineffe ctive assistance of counsel. Gross did not prese rve his claim for trial court err or by raising rela ted claims of inef fec tive assistance of counse l.
I t appea rs that Gross square ly raised the issue of trial court err or prese nted here only once. I n his fourth application to reope n his appeal pursuant to Rule 26(B ), Gross asser ted that the trial
court failed to adequat el y respond to the conce rns raised in his motion to appoint new counsel, including his de sire to proc eed pr o se if counse l would not c hang e his ple a to N GRI . The pe tition was denied as unt i m el y . T h e C o urt of Appeals held t hat “App. R. 26 (B ) provides an application shall be filed within 90 d ay s of the appellate judgme nt unless the applicant demonstrates g ood

cause ,” and G ross failed to de monstrate g ood cause for the untimely application.
insanity .” He also claimed that he had a chronic history of drug and alcohol abuse, that he had tested positive for coc aine in his sy stem shortly afte r the incide nt, and that seve ral witnesse s said that he was intox icated at the time of the incident. Finally , Gross raised the claim in his second petition for post conviction relief

, asser ting that “[t] rial counsel [failed] to investiga te the petitioner’s extensive history of multipl e substance abuse and addiction: [si c] call witnesses that wer e available and enter a plea of tempora

ry insanity by rea son of voluntary

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Gross’s claim is proce durally defa ulted. I t is clea

r that Ohio law require d Gross to raise his claims within ninety day s of the appellate judgme nt. See Ohio R. App. P. 26(B )(1)

. The Ohio Court of Appea ls was fre e to deny the application, which it did. The time require ment in Rule 26(B ) is an adequate and independe nt state g round. See Monzo v. Edwards , 281 F. 3 d 5 6 8 , 577-78 (6th Cir. 2002).
Gross appea

rs to asser

t two cause s for his defa ul t

. Fi rst , he arg ues that he attempted to addre ss his conce rns about trial counsel’s failure to investiga te and pursue a NGRI plea, but that the trial court never addre ssed him, thus deny ing him a n opportunity to develop the rec ord. He arg ues that the trial court’s failure was an objective fac tor external to the def en se, which preve nted him from comply ing w ith procedur al rules. This ar g ument is not well rece ived. Even if the trial court improperly preve nted Gross from addressing the court, and thereby preve nted hi m from making a

rec ord of his claims ag ainst counsel, it did not preve nt Gross from timely raising the claim on direc t
appea l. Second, Gross arg ues that he was preve nted from raising the cl ai m on appea l due to ineffe ctive assistance of appellate counsel. An ineffe ctive assistance of counsel claim may serve as the cause to excuse proce dural defa ult, but only whe re the claim itself has not been proce durally defa ulted, or, if proce durally defa ulted, cause and p rejudice exis t for the defa ult. Edwards v. Carpenter , 529 U.S. 446, 451 (2000). Acc ording ly , in orde r t o deter mine whether ineffe ctive assistance of appellate counsel can constitute cause for Gross’s proce dural defa ult of his trial court

err or claim, we must consider whether his claim of ineffe ctive assistance of appellate counsel is itself
proce durally

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Gross raised ineffe ctive assistance of appellate counsel in his third and fourth delay ed Rule 26(B ) applications, both of which wer e dismiss ed as untimely

. Be cause the Ohio Court of Appea ls relied on a proce dural bar to dismiss the claim, and beca use the timeliness require ment in Rule 26(B ) is an adequate and i ndepende nt state g round, Monzo , 281 F.3d a t 568, the claims are proce durally defa ulted. Gross does not asser t any wher e in his response bri ef t h at there was cause for this
proce dural defa

ult. Thus, ineffe ctive assistance o f ap p el late counsel cannot serve as cause for Gross’s proc edura l defa

ult of his trial court er

ror c laim. Gross’s claim that the t rial court err ed in ref using t o grant subst itute counsel or allow hi m to proce ed pro se is procedur ally defa ulted. b. I neff ective A ssistance of Counsel
Gross alterna t i v el y ra i ses “state court” err or in failing to find that Gross was denied the eff ective assistance of t ri al an d appellate counsel. We have alre ady found that the ineffe ctive assistance of appe llate counse l claim is procedur ally defa ulted. The Warden asser

ts that the trial counsel claim is also proce durally defa ulted. Gross claimed in both of his petitions for post-conviction relief that he was preve nted from enter ing a plea of NGRI due to ineffe ctive assistance of trial co u n s el

. The first petition was dismiss ed by the trial court 4
beca use Gross failed to comply with Ohio proce dural law requiring him to raise his claim on direc t
appea l. The Ohio Court of Ap p ea l s d i smissed the appea l on the g rounds that the assig nments of

I n his f irst Rule 26(B ) application, Gr oss also raised the issue that his tria l c ounsel should 4 have consulted a psy cholog ist conce rning the pos sibili ty of a brain i n j u ry . T h is arg ument did not addre ss c ounsel’s failure to e nter a plea of NGRI , and, ac cording ly , did not proper ly prese nt to the state cour t both the fac tual and leg al base s of the cla im. Hicks , 377 F.3d a t 552.No. 08-4272

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err or contained there in w ere prema ture pursuant to O hio Re v. Code § 2953.21(A) (2). The second petition was dismissed as untimely pursuant to Ohio Rev. Code § 2953.21(A )(2)

. We ag ree that Gross’s ineffe ctive assistance of trial counsel claim is proce durally defa ulted.
He failed to comply with Ohio proce dural rules, and the state courts enfor ced these rules when they dismiss ed his petitions for post-conviction relief. Fa ilure t o comply with Ohio rules of proce dure for post-conviction relief has been considere d an adequate and independe nt sta te g round on which the state can rely to f

orec lose revie w of a fede ral constitutional c laim. See Norris v. Schotten , 146 F.3d 314, 332 ( 6th Cir. 1998) (“[A]ppellant never r aised thi s specific issue on direc t appea l to the Oh i o C ourt of Appea ls and the Ohio Supreme Court and is now barr ed from doing so beca use o f
proce dural defa

ult[ .]”). Gross offe rs no cause for h i s p ro cedural defa ult, other than ineffe ctive assistance of appellate counsel, which we found is proce durally defa ulted itself. Thus, we are barr ed from conside ring the claim on habe as re view. 4. Conclusion on Procedura l Defa ult
Ba sed on the fore g oing analy sis, we conclude s that Gross’s claims of juror misconduct, trial
court err or, and ineffe ctive assistance of counsel rela ting to his attempt to plead NG R I are
proce durally

defa ulted.
B. Me rits
I n his rema ining claims, Gross arg ues that the state courts’ failu re t o s u p press pretria l photogr aphic and show-up identifications involved an unrea sonable deter mination of the fac ts and

a decision contra

ry to c lear ly established fede ral law. The district c ourt dismiss ed these claims onNo. 08-4272

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the merits. Gross , 2008 U.S. Dist. L EXI S 84831, at *8-10. We revie w the district court’s decision de novo. Joseph v . Coyle , 469 F.3d 441, 449 ( 6th Cir. 2006).
We are bound by the provisions of the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (“A EDPA”). Under AEDPA, an application for a writ of habea s corpus can only be g rante d when the state c ourt’s adjudica tion of the claims: (1) resulted in a decision that was contra ry t o , o r involved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2 ) re s u l t ed in a decision that was based on an unrea sonable deter mination of th e fac ts in li g ht of the evide nce pr esente d in the state cour t proce eding s. 28 U.S.C. § 2254(d). A s tate court adjudication is “contr ary to” S up re m e C o u rt prec edent “if the
state court arr ives at a conclusion opposite to that rea ched by [t he Supreme] Court on a question of law” or “if t h at state court confr onts fac ts that are materia lly indisti ng uishable from a rele vant Supreme Court prec edent and arr ives at [an opposite result.]” W illiams v. Taylor , 529 U.S. 362, 405 (2000). A state court adjudication is an “unre asonable application of” clea rly established fede ral law if “the state court identifies the corr ect g overning leg al principle . . . but unre asonably applies that principle to the fac ts of the prisoner’ s case ” or if a “state court decision either unrea sonably extends

or unrea sonably ref

uses to extend a leg al principle from the Supreme Court prec edent in a new context.” Harris , 526 F.3d at 909 (citations and internal quotation marks omitted). To obtain habea s relief , a petitioner mu s t s h o w that “the state court’s reje ction of his claims was so lacking in justification that there was an err or well understood in exis ting l aw b ey o n d any possibili ty for fairminded disag ree ment.” Herrington v. Richter , 131 S. Ct. 770, 786-87 (2011). I n addition, a stateNo. 08-4272

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court’s deter

mination of

fac tual issues is presumed to be corr ect, and the petitioner has the burden of rebutting the presumption of corr ectne ss with clear and convincing evidenc e. 28 U.S.C. § 2254(e) (1). The int roduction of a pretrial i dentifica tion that is so “impermissibly sug g estive as to give rise to a very substantial likelihood of irrepa rable misidentification” violates a defe ndant’s rig ht to due proce ss. T

h i g p i n v. Cory , 804 F.2d 893, 895 (6th Cir. 1986) (interna l quotation marks and citation omitted). A court mu s t fi rs t d etermine whether an identification proce dure was unduly
sug g estive. See Ledbe tter v. Edwards , 35 F.3d 1062, 1070- 71 (6th Cir. 1994)

. I f it was, the court
must evalua

te the totality of the circ umstances to deter mine whether the identification was reliable nonetheless. Id

. Five fac tors (the Manson fac tors) are considere d when deter mining the reliability of pre trial identification: 1) the oppor tunity of the witness to view the criminal at the time of trial; 2) the witness’s de g ree of attention at the time of the observa tion; 3) the acc urac y of the witness’s prior descr iption of the criminal; 4) the level of cer tainty of the witness when confr onted by the criminal; and 5) the leng th of time betwee n the crime and confr ontat i o n . Id

. (citing Manson v. Braithwai te , 432 U.S. 98, 114 (1977) and Neil v. Briggers , 409 U.S. 188 (1972))

. “Reliability is the linchpin in de termining the admissibili ty of identification testimony [.] ” Manson , 432 U.S. at 114. 1. Photogra

phic I dentifica tions
Gross challeng es the admissibili ty of photogr aphic identifications made by the four juvenile witnesses: J ason Stevens, Robert Hill, and Courtney and Max Ford. Gr oss a sserts that the totality of the circ umstances surrounding the juvenile witnesses’ photogr aphic and in-court identifications of Gross wer e unreliable and violated his rig hts to due proce ss and a fair trial pursuant to Article I ,No. 08-4272

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Sections 2, 9, 10, and 1 6 o f the Ohio Constit ution and the Fifth, Six th, Eig hth, and Four teenth 5
Amendments of the United States Constit ution. On the issue of the photogr aphic identifications, the Ohio State Supreme Court found that: Only one of the four juveniles positively identified Gross fr o m two photogr aphic arr ay s. That witness stated that he ranke d the cer tainty of his pretrial identification of Gross as a “five ” on a scale of one to ten, with ten equaling the most cer tainty

. On cross-e x amination, the juvenile then admitted that he had seen Gross’s picture in the newspa per and that his subse quent in-court identification had been a “thre e” on the cer tainty scale

. Of the rema ining three juveniles, two could i dentify Gr o s s only as part of a g roup that included other photogr aphs – and one of these juveniles testified that, afte r failing to identify Gross in an ear lier courtr o o m appeara nce, his at-trial identification depended in part on flashbac k drea ms that he had been having in the interim. The four

th juvenile made no identific ation.
We find that the trial court did not abuse its discretion in admitting the identifications. The j uveniles’ acc ounts of the investiga tors’ proce dures underc ut G ross’s arg ument that impermissibly sug g estive state action tainted the ident if ic a ti o n proce ss. To the contra

ry , the rec ord ref

lects the state’s car eful eff orts to avoid sug g estiveness

. The investiga tors showed the juveniles betwee n 30 and 100 photo gra p h s , and there is no evidenc e that the investiga tors made sug g estions or comments to the juveniles, rushed them, or told them wh ether they had picked Gross’s photogr aph. Moreove r, the circ umstances that Gross cites as sug g estive

- that the juveniles encounte red media repor ts a nd saw Gross g o into the courtroom

- g o to the weig ht to be g iven t he identifications, rathe r than their a dmissibi lity

. See [ S t a t e v. ] Brown , 38 Ohio St. 3d [305, 310-311], 528 N.E.2d 523 (holding that alleg edly sug g estive circ umstances that did not constitute state action g o to weig ht and reliability of testimony , not admissibili ty ). Even if we wer e to conclude that the trial court err ed, howeve r, no prejudice attac h ed

. See id

. at 311, 528 N.E.2d 523. Def ense counsel conducte d a probing examination of the circ umstances surrounding both the photogr aphic arr ay s an d t h e identifications to allow the jury to assess the value of the juveni les’ testimony

. Given the totality of the circ umstances surrounding the photogr aph selec tion proce dures and the identifications, we cannot say reve rsible er

ror e x isted.

We consider only

alleg ed fe dera l constituti onal violations. Fede ral c ourts cannot g rant 5 habea s relief

for violations of state la

w. See 28 U.S.C. § 2254(d); Estelle v. M cGuire , 502 U.S. 62, 67-68 (1991)

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Gro s s , 7 76 N.E.2d at 1076-77. We find that Gross has failed to demonstrate either that the state court’s deter

mination of fac ts was incorre ct, or that the state court’s decision was contra ry to or an

unrea sonable a

pplication of cle arly

established law.
Gross arg ues that the proce dure used was unconstitutional for three rea sons: 1) that beca use Stevens and Hill we re exposed to Gross’s picture multipl e times during the identifica tion process, they may have made an unconscious transfe rre nce; 2) that Stevens and Hill wer e asked to view the 6 photo arr ay s in a way that imp l i ed t h e suspect’s picture was among those contained in the photo

arr ay ; and 3) that the juvenile witnesses did not have an adequate opportunity to view L ieutenant 7
L utz’s assailant during the crime and wer e unable to identify Gross the first time they viewed a photo

arr ay or saw G ross in person.
We must first deter

mine whether the proce dure used in the photogr aphic identifications was unduly sug g estive. W e find that it was not. First, the i ssues of unconscious transfe rre nce and t he witnesses’s abilit y to view the assailant during t h e cr ime g o to the reliabilit y of t he identification, the second step in the analy sis. Cornwell v. Bradshaw , 559 F.3d 398, 414 (6th Cir. 2009) (finding that possibili ty of unconscious transfe renc e “g o[es] to the reliability of the identification” and does
not “re late to the sug g estiveness of” the identification proce dure) ; Manson , 432 U.S. at 114 (stating

Unconscious transfe rre nce occur s when “a fac e seen in one situation is mis t ak en l y 6 reme mbere d to have been seen in another .” Randolph N. J onakit, Reliable Identification: Could the Supreme Court T

ell in Manson v. Braithwaite? , 52 Colo. L . Rev. 511, 523-24 (1981)

. Gross arg ues that this subjected both identifications to the “Rosenthal Effe ct.” Gross asser ts 7 t h at when witnesses are informed that the suspect is among their choice s in an identi fi ca t i o n proce dure, it raises the likelihood of misi d enti fica tion by 24%. Steven Grossman, Suggestive Identifications: The Supreme Court’s Due Process Test Fails to Mee t Its Own Criteria , 11 U. Ba lt. L . Rev. 53, 103, n.276 (1981).No. 08-4272

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that first fac tor in deter

mining reliability of identification is witness’s opportunity to view criminal
at time of crime)

. Second, the ci rc u m stance s of the identifications do not demonstrate undue
sug g estiveness. Hill was shown between 6 0 and 80 photogr aphs, and narr owed the photogr aphs d own to three , one of which was Gross. Hill subsequently was unable to identify Gr o s s d u ri n g a motion hear ing, but did identify him on the day of the trial based on flashbac ks and drea ms. On the day of the incident, J ason Stevens was shown a book of photos, containing what he estimated to be around 100 photos, but did not make an identification. The next day , Stevens was shown around 65 photos and was able to identify Gross. Stevens admitted during cross-e x amination that he had seen Gross’s picture in a newspa per. At a hear ing, Stevens stated that he did not rec og nize Gross when he first saw him in the courtroom, but that afte r he “g ot a look at him,” he rec og nized him. At trial,
Stevens identified Gross, althoug h he stated that he looked differ ent than he h ad t he day of the shooting. Stevens testified that his level of cer tainty reg arding his identification of Gross on the day of t he hearing was a t h re e o u t o f t en , with ten being the highe st. Neither Courtney For d nor Max
For d wer e initially able to make an identification based on photogr aphs shown to them. Six months later, afte r being interviewe d by police, Courtney For d was able to narr ow down a photo arr ay to five possible suspects, one of w hom was Gross. Gross arg ues t hat t he officer s acte d in a manner t hat was unduly s u g g estive by telling Hill that the purpose of viewing the arr ay was to see if he could identify a suspect, making Hill awa re that the office rs wanted him to pick someone out of the photo arr ay , and by instructing Hill to choose one photo afte r he had narr owed the photo arr ay down to three photogr aphs. There is no evidenc e to demonstrat e t h at t h e office rs acte d in an unduly sug g estive manner . I n particula r, there is noNo. 08-4272

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evidenc e the office rs s aid or did any thing to sug g est to Hill or Stevens which picture he should choose. See W

ilson v. Mitchell , 2 5 0 F. 3d 388, 397 (6th Cir. 2001) (finding that to be unduly
sug g estive, a proce dure must “stee r[ ] the witness to one suspect or another , independe nt of the witness’ honest rec ollection.”); see also United States v. Russell , 532 F.2d 1063, 1068 (6th Cir. 1976) (f inding that of

fice rs’ be havior was unduly sug g estive wher e witness wa s under impre ssion that suspect’s photo was in arr ay , and, afte r picking “wr ong ” photogr aph, office rs “told her, in eff ect, that she had chosen the wrong photograp h , an d that the other photogr aph portrayed the person authorities believe d to be g uilty ”). Finding no err or ourselves, we find no unrea sonable constitutional err ors by the state courts by admitting the photog raphic identifications or a llowing the in- court identifications of Gross. 2. Show-up I dentifica tions
Gross also arg ues that the show-up identifications made by Kar en Wright and Shawn J ones

wer e unduly

sug g estive. The O hio Supreme Court stated: [W ]e [cannot] say that the show-up identification proce dures constitute reve rsible err or. Severa l hours afte r the murder of L ieutenant L utz, investiga t o rs took both Kar en Wright and Shawn J ones to vie w Gross, who was in c ustody near the scene . Neither witness spoke to the other. Fr om sep ar at e p o l ice vehicles, the witnesses observe d Gross, who stood with his hands behind his back, betwee n two office rs. Both Wrig ht and J ones identified Gr oss at the sce ne, in cour t for a motion hea

ring , and at trial. Gross complains that the trial cour t erred in admitting these identifications.
We ag ree with Gross that th e s h o w-up identification was sug g estive. We also reiter ate that the pr actice of showing s uspects si ng ly to persons for the purposes of identification and not as part of a li neup, has been widely condemne d

. . . . But the ultimate focus in deter

mining whe ther reve rsible er ror e x ists is not just on whether the prac tice was used, but on whether it was so sug g estive as to cre ate

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Gross , 776 N.E.2d at 1077. The mag istrate judge conclude d that althoug h show-up identifications

are inhere ntly sug g estive, the totality of the circ umstances indicated that the in-court identifications

wer e not constitutionally prohibited. Gross v. Jack son , 1008 U.S. Dist. L EXI S 37095, at *87 (S.D. Ohio May 6, 2008). The district court adopted the mag istrate’s rec ommendation. Gross , 2008 U.S. Dist. 84831 at *9. “The prac tice of showing suspects singly to persons for the purpose of identification, and not

as p ar t o f a l i n eup, has been widely condemne d.” Stovall v. Denno , 388 U.S. 293, 302 (1967), overruled on other g r o u n d s, Griffit h v. Kentucky , 479 U.S. 314 (1987). Whether a show-up identification is a due proce ss violation, howeve r, depends on the totality of the circ umstances. Id

. Gross arg ues that the trial court err ed in deter mining the fac ts by ignor ing sever al “g laring ” problems with Wright and J ones’s identifications. He further asser ts that the deter

mination made 8 by the Ohio Court of Appe als and Ohio S upreme Court that the trial court did not er r in admitting the identifica tions was contra ry to and an unrea sonable application of fe dera l law, spec ifically the

Among the err ors that Gross alleg es are : 1) J ones’s testimony that he could not initially say 8 whether the assailant was black or white, and a police serg eant admitting that if a witness cannot be sure of a per son’s rac e, he should not be subjec ted to a show-up ide ntification; 2) the limited time period in which Wright a nd J ones had to vie w the assailant, the speeds at which they wer e driving past the scene of the crime, and the fac t that their attention was split betwee n driving and witnessing the event; 3) the fac t tha t it was dark outside; 4) J ones’s testimony that he did not notice the injury and blood on Gross’s fac e during the show-up identification despite the fac t that it was light outside, which Gross arg ues undermines the assertion that J ones could identify Gross at the s cene whi le i t was dark out; 5) the f

act that ne ither Jones nor Wright g ave a detailed de scription of the a ssailant; 6) Gross’s alleg ation that Wright identified Gross in court on the basis of the show-up identification; and 7) Jones’s testimony

admitting that his attention was f ocused on the g un.No. 08-4272

Gross v. W

arden, Lebanon Correctional Institution

Manson fac tors. Even assuming that the show-up identification was unduly sug g estive, the totality of the c ircumstance s demonstrates that Wrig ht and J ones’s testimony was re liable.
Kar en Wright was driving past the Certified g as s t at ion on the day of L ieutenant L utz’s murder. When she saw an alterc ation taking place , she slowed her vehicle down to the point wher e she was almost stopped. Wright estimated that she could not have been g oing more than ten miles
per hour. Although it was dark out at the time, the are a wher e the alterc ation was taking place was well-lit. She testified that she could tell that one person eng age d i n t he alterc ation was a deputy sheriff from the patche s on his sleeve , and that she was able to se e the other person’ s fac e. Wright kept driving to find a pay phone, but turned around afte r hear ing g un shots. When she g ot ba ck to the Certified g as station, she saw a y ellow car exit the g as station and head towards Z anesville. She testified t hat when she first d ro v e by the C ertified station she could see the assailant’s face for 25 seconds, and observe d that he was taller than L ieutenant L utz, had shag g y hair, and some fac ial hair.
A few hours later, she was t ak en b y an office r for a show-up identification of Gross at the site of
appre hension. Gro s s wa s s t an ding betwee n two office rs, outside a police cruiser , with his hands behind his back. Wright said that she rec og nized Gross as soon as she arr ived at the scene based on his build and his face

. J ones was driving by the Certified g as station on his w ay to w ork. He slowed down when he saw the juveniles beside a car in the parking lot. At that point he hear d a shot, and slowed down
to approximately 15 miles per hour; he then hear d two more shots. When he looked in the vicinity of the shots, he observe d the deputy sheriff , partially down on the g round, and a g uy who was “kind of stocky ,” with “c urly hair, moustache, [and a] scrag g ly bear d.” Jones testified that he witnessedNo. 08-4272

Gross v. W

arden, Lebanon Correctional Institution

the shooting of L ieutenant L utz from about 10-15 fee t awa y , that he had a g ood opportunity to view the events for about three to fi v e s ec o n d s, and that the only thing he could not see wer e the assailant’s ey es. I n h i s i n i t i al statement to police, J ones told police that he was not sure if the assailant was white or black, but quickly told police that the assailant was not black. J ones was later broug ht to the scene of appre hension wher e he was asked i f Gross, who was flanke d by police office rs with his hands behind his back, was the man he had seen at the Certified g as station. J ones confirme d that Gross was. J ones identified Gross at a hear ing and asser ted that Gross was the man he had seen at the Certified g as station, though J ones admitted that he had s ee n m edia repor ts, including pictures, since the incident. J ones identified Gross in the courtroom during the trial as the man he ha d seen a t the Certified g as station. Both Wright and J o n es h ad the opportunity to view the assailant at the time of the crime,
g ave g ener al descr iptions of Gross befor e their identification of him, and made their identifications only hours afte r the crime occur red. There fore , we find that the identifications wer e reliable and that the state c ourt’s dec ision was not contrar y to or an unre asonable application of f eder al law.
III. CONCLUSION Gross’s cl ai ms of j uror mis conduct and trial court error surrounding his decision t o plead
NGRI are proce durally

defa ulted. Fur

ther, Gr oss has not demonstrated that the trial court rea ched

a decision that was contra

ry to or an unrea sonable application of clea rly established fede ral law with
reg ards to the photogr aphic, in-court, and show-up identifications. Acc ording ly , we AF F IRM the district court’s de nial of Gross’ s petition for habe as cor pus.