IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DELSHJUAN JONES, 

a.k.a. Delshaun Jones, CASE NO. 2:17-CV-192 

 JUDGE GEORGE C. SMITH 

 Petitioner, Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, SOUTHERN OHIO 

CORRECTIONAL FACILITY, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ, 

Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, the Magistrate 

Judge RECOMMENDS that this action be DISMISSED. 

I. Facts and Procedural History 

 The Franklin County (Ohio) Court of Common Pleas summarized the facts of the case as 

follows: 

On March 8, 2014 an incident involving a stabbing occurred at 

Schrock Tavern. The victim Samuel Lacy, a security guard at the 

Schrock Tavern claimed that he was stabbed by a person who he 

had recognized from the tavern before and knew as a rapper. 

Ultimately, the police were able to get the defendant’s name. Det. 

Brian Wildman created a six pack photo array that included the 

defendant. After he interviewed the defendant at the hospital he 

had Officer Gregory Potter serve as the blind administrator for the 

array. This interview was audio taped. . . . For the identification 

Officer Potter followed the procedure he was trained as the blind 

administrator. Mr. Lacy identified photo number four which was 

the defendant, indicating I think that’s him. 
2 

Thereafter, the defendant was arrested and taken to Columbus 

Police Headquarters where he was interrogated. In reviewing the 

rights waiver with the defendant, he admitted to consuming alcohol 

at 6:30 pm the night before and taking Percocet, 15 mg. between 

11:30 pm to 12:00 am. The waiver was signed at 5:54 am. After 

the defendant had reviewed the rights waiver with the officer he 

indicated he understood his rights and signed the acknowledgment. 

He then talked with the officer providing some incriminating 

statements. 

Entry (Doc. 6-1, PAGEID ##123-124). Petitioner was indicted by the January 10, 2014, term of 

the Franklin County grand jury on one count of felonious assault in violation of O.R.C. 

§ 2903.11. (Id. at PAGEID #46). After the trial court’s denial of Petitioner’s motions to 

suppress evidence, Petitioner entered a no contest plea. (Id. at PAGEID #150). On November 

21, 2014, the trial court imposed a sentence of seven years of incarceration plus three years of 

post-release control. (Id. at PAGEID ##170-171). Represented by new counsel, Petitioner 

pursued a timely appeal. He raised the following assignments of error: 

[I.] The trial court erred when it overruled defendant's Motion to 

Suppress Identification. 

[II.] The trial court erred when it overruled the defendant's Motion 

to Suppress Statements. 

[III.] The trial court abused its discretion when it submitted a 

judgment entry that did not accurately reflect what occurred at the 

plea hearing. 

State v. Jones, No. 14AP-1050, 2015 WL 7902800, at *1 (Ohio App. 10th Dist. Dec. 3, 2015). 

On December 3, 2015, the appellate court sustained Petitioner’s third assignment of error, as the 

parties agreed “that the judgment entry signed by the trial court judge is incorrect when it states 

that Delshjaun Jones was convicted following a guilty plea” and remanded the case to the trial 

court to journalize a nunc pro tunc entry reflecting that Petitioner was found guilty following a 
3 

plea of “no contest.” Id. The appellate court otherwise affirmed the judgment of the trial court. 

Id. On May 4, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State 

v. Jones, 145 Ohio St.3d 1458 (2016). On December 11, 2015, the trial court issued the 

Amended Judgment Entry. (Id. at PAGEID #316). 

 On March 6, 2017, Petitioner filed this pro se § 2254 Petition.1 He asserts that he was 

denied a fair trial due to admission of identification testimony obtained through the use of an 

unduly suggestive photo array conducted in violation of state law (claim one); and that his 

statements were admitted in violation of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (claim 

two). Respondent contends that Petitioner’s claims lack merit. 

II. Standard of Review 

Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective 

Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of state-court 

determinations. The United State Supreme Court described AEDPA as “a formidable barrier to 

federal habeas relief for prisoners whose claims have been adjudicated in state court” and 

emphasized that courts must not “lightly conclude that a State's criminal justice system has 

experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.” Burt v. 

Titlow, 134 S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)); see 

also Renico v. Lett, 559 U.S. 766, 773 (2010) (AEDPA imposes a highly deferential standard for 

evaluating state court rulings and demands that state court decisions be given the benefit of the 

doubt). 

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

2254(e)(1) provides as follows: 

 

1

 Petitioner indicates that, on February 24, 2017, he submitted the Petition to prison officials for mailing. Petition

(ECF No. 1, PAGEID #11). 
4 

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. 

“Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was 

contrary to, or involved an unreasonable application of, clearly established federal law as 

determined by the Supreme Court, or based on an unreasonable determination of the facts in light 

of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir.) 

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub. nom Coley v. 

Robinson, 134 S. Ct. 513 (2013); 28 U.S.C. § 2254(d)(1); 28 U.S.C. § 2254(d)(2) (a petitioner 

must show that the state court relied on an “unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding”). The United States Court of Appeals for 

the Sixth Circuit explained these standards as follows: 

A state court's decision is “contrary to” Supreme Court precedent 

if (1) “the state court arrives at a conclusion opposite to that 

reached by [the Supreme] Court on a question of law[,]” or (2) “the 

state court confronts facts that are materially indistinguishable 

from a relevant Supreme Court precedent and arrives” at a 

different result. Williams v. Taylor, 529 U.S. 362, 405[] (2000). A 

state court's decision is an “unreasonable application” under 28 

U.S.C. § 2254(d)(1) if it “identifies the correct governing legal rule 

from [the Supreme] Court's cases but unreasonably applies it to the 

facts of the particular ... case” or either unreasonably extends or 

unreasonably refuses to extend a legal principle from Supreme 

Court precedent to a new context. Id. at 407[]. 

Coley, 706 F.3d at 748–49. The burden of satisfying the standards set forth in § 2254 rests with 

the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011). 
5 

“In order for a federal court to find a state court's application of [Supreme Court 

precedent] unreasonable, . . . [t]he state court's application must have been objectively 

unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21, 

(2003) (internal quotation marks omitted) (citing Lockyer v. Andrade, 538 U.S. 63, 76 (2003); 

Williams, 529. U.S. at 409); see also Harrington, 562 U.S. at 778 (“[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”)(quoting Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004)). In considering claims of “unreasonable application” under 

§ 2254(d)(1), courts must focus on the reasonableness of the result, not on the reasonableness of 

the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (“‘[O]ur focus on 

the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate legal 

conclusion that the state court reached and not whether the state court considered and discussed 

every angle of the evidence’”) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en 

banc), cert. denied sub. nom. Neal v. Epps, 537 U.S. 1104 (2003)); see also Nicely v. Mills, 521 

F. App’x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that was “not 

expressly considered by the state court in its opinion” to evaluate the reasonableness of state 

court's decision). Relatedly, in evaluating the reasonableness of a state court's ultimate legal 

conclusion under § 2254(d)(1), a court must review the state court's decision based solely on the 

record that was before it at the time it rendered its decision. Pinholster, 563 U.S. at 181. Put 

simply, “review under § 2254(d)(1) focuses on what a state court knew and did.” Id. at 182. 

 
6 

A. Claim One 

 In claim one, Petitioner asserts that police failed to follow the procedures required under 

state law when obtaining a photo identification of him from the alleged victim Samuel Lacy, 

resulting in an unduly suggestive identification. According to Petitioner, Lacy’s identification of 

him was unreliable, as Lacy had little to no opportunity to view his assailant at the time of the 

offense, paid limited attention, provided a vague description of the perpetrator to police, and was 

uncertain of his identification of Petitioner. The state appellate court rejected this claim as 

follows: 

The trial court . . . overruled a motion to suppress identification 

and a motion to suppress statements. The motions were overruled 

following an evidentiary hearing, which revealed that someone 

stabbed or slashed Samuel Lacy, seriously injuring Lacy's face. 

Lacy felt he knew the identity of his assailant, a young man called 

“Deli” who came into the Schrock Tavern where Lacy worked. 

Columbus police officers who investigated the assault concluded 

that the assailant was Delshjaun Jones and prepared a photo array. 

*** 

The [] issue is whether the identification of Jones as the assailant 

by Samuel Lacy should have been suppressed as evidence. The CD 

of the interview of Lacy by police detectives and of the 

presentation of the photo array to Lacy for him to identify his 

assailant is consistent with the trial court's overruling of the motion 

to suppress. Lacy was clearly certain that he knew his assailant 

from the assailant's frequent visits to the Schrock Tavern. Lacy 

recognized the nickname “Deli” as applying to his assailant. 

Lacy identified two photos of the six in the array as pertinent to the 

investigation. The photo in the slot marked “6” he identified as 

being a friend of the assailant. The photo in the slot number “4” he 

identified as being a photo of the assailant. The procedure was not 

suggestive and therefore has [sic] not the basis for suppressing the 

identification testimony had this been a trial. 

The first assignment of error is overruled. 
7 

State v. Jones, 2015 WL 7902800, at *1-2. 

 To the extent that Petitioner raises a claim regarding the alleged violation of state law, his 

claim fails to provide a basis for relief. Federal courts can grant habeas corpus relief only if the 

petitioner is confined in violation of the United States Constitution. 28 U.S.C. § 2254(a); e.g., 

Wilson v. Corcoran, 562 U.S. 1, 5 (2010). “[I]t is not the province of a federal habeas court to 

reexamine state court determinations on state law questions. In conducting habeas review, a 

federal court is limited to deciding whether a conviction violated the Constitution, laws, or 

treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). 

However, identification testimony based upon a pre-trial procedure that is so 

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

misidentification” violates a criminal defendant's right to due process. Thigpen v. Cory, 804 

F.2d 893, 895 (6th Cir. 1986) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). “It 

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

Biggers, 409 U.S. 188, 198 (1972). The Court first must determine whether the pre-trial 

identification procedure employed was unduly suggestive. Ledbetter v. Edwards, 35 F.3d 1062, 

1070–71 (6th Cir. 1994), cert. denied, 515 U.S. 1145 (1995). If so, the Court must then consider 

the totality of the circumstances in order to determine whether the identification is nevertheless 

reliable. Id. at 1070 (citing Neil v. Biggers, 409 U.S. at 199–200; United States v. Hill, 967 F.2d 

226, 230 (6th Cir.), cert. denied, 506 U.S. 964 (1992); Thigpen, 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. 
8 

Ledbetter, 35 F.3d at 1070 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. 

Biggers, 409 U.S. at 199–200). 

 Here, Officer Brian Wildman testified that, on March 8, 2014, he was contacted about 

a stabbing at the Schrock Tavern and given Petitioner’s name as the suspect. He assembled a 

photo lineup which included Petitioner’s photograph, and went to the hospital in order to 

interview Samuel Lacy, the alleged victim. Transcript of Suppression Hearing (Doc. 6-2, 

PAGEID # 338). Wildman gave the photo array to a “blind administrator,” i.e., an officer who 

did not know the identification of the suspect. (Id. at PAGEID #340). Lacy told police he had 

had prior dealings with his assailant. “It was clear he had dealt with the person before.” Lacy 

did not know the name of his attacker, but was clearly familiar with the man. (Id. at PAGEID 

#341). Lacy described him as a light skinned black male, approximately six feet two inches tall, 

with large lips and “he mentioned something about his eyebrows.” (Id. at PAGEID #342). 

Wildman recorded the interview with Lacy, and it was played during the hearing on the motion 

to suppress evidence. (Id. at PAGEID #345). The recording indicated that Lacy was working 

security at the Schrock Tavern on the night he was attacked. 

And there was a group of females come in. I patted them down . . . 

. 

*** 

Searched the purses. So there was a pause for a second. Then 

nobody come in and there was another group of dudes coming in 

that came in and everything. Dude had a knife on him . . . . I 

patted him down . . . . okay, he had it on this side. He had a knife 

on this side. He had a can of mace on this side in his jacket. I said 

you have to go back to the car, take it out to your car. He said, all 

right. 

And then like three or four other people come in, I patted them 

down . . . . And then there was a quick pause. Because I wasn’t 
9 

standing that close to the door and I was five feet away from [the 

front] door . . . . 

And so when he came in, he just – (indicating) – hit me. I’m like, 

oh, this mother fucker. 

*** 

I had my back completely turned and he hit me. I don’t know if it 

was a box cutter or a knife. 

(Id. at PAGEID ##348-349). Lacy recognized his assailant as a rapper who had frequented the 

club in the past. (Id.). The man usually came to the club with “his boys,” whom Lacy also 

recognized. (Id.). Lacy recognized the nickname, “Deli,” but said the man also went by another 

name. (Id. at PAGEID #349). Lacy described him as a black male with light skin, a couple 

inches taller than himself. Lacy could recognize him if provided with a photograph. (Id. at 

PAGEID #350). “Uh-huh. Can’t miss him. He got big lips and – (inaudible) – eyebrows. – 

(inaudible)—he got some tattoos and stuff. You know what I mean? You can’t miss him.” 

(Id.). Officer Wildman was not present when Lacy identified Petitioner from the photo array. 

(Id. at PAGEID ##400, 410). 

Officer Gregory Potter also responded to the Schrock Tavern and followed Lacy to 

Riverside Hospital. (Id. at PAGEID #416). Potter showed the photo array provided by Officer 

Wildman to Lacy and asked Lacy if he could identify the person who had assaulted him at the 

bar. (Id. at PAGEID #417). Potter did not know, at that time, the identity of the suspect. (Id. at 

PAGEID ##417-418). An audiotape was made of the identification procedure, which was played 

during the hearing on the motion to suppress. It indicates that Potter instructed Lacy as follows: 

The photo array you’re about to view consists of six photographs 

in no particular order of importance. The subject of his 

investigation may or may not be included in the photographs. I do 

not know who the subject of this investigation is. Look carefully 
10 

at the photographs of all six people then advise me whether or not 

you recognize anyone. You are not required to select a photo. 

 

(Id. at PAGEID #421). Lacy identified photograph number six as “one of the dudes’s he’s 

connected with” and photograph number four, or Petitioner’s photograph, as the person who cut 

him. (Id. at PAGEID ##421-422). Lacy stated, “I want to be sure. I don’t want to mess up. 

Make sure I get the right person. That’s got to be him then. Because I remember – I seen him 

before throwing him out the club.” (Id. at PAGEID #422). 

DETECTIVE: So number six you’ve seen before. 

MR. LACY:2

 Yeah. I know – I’ve seen him before, but – I think 

that’s him. It happened so fast, bro. 

THE DETECTIVE: Number four is the one from – 

MR. LACY: From this, yeah. 

THE DETECTIVE:3

 Did that to you? Cut you? 

THE DEFENDANT: Yes. Uh-huh. 

THE COURT: Okay. 

(Id.). Potter denied making any suggestive remarks regarding the identification of the suspect. 

(Id. at PAGEID ##422-423). The photo array also was entered into evidence and has been made 

a part of the record before this Court. (See Id. at PAGEID #322; ECF No. 19). 

Petitioner argues that the state appellate court’s decision denying his claim constitutes an 

unreasonable determination of the facts in light of the evidence presented because police 

improperly provided Lacy with Petitioner’s name and put his name beneath his photograph on 

 

2

 The transcript refers to Lacy as “the defendant” at this point; however, this appears to be a typographical error. 3

 The transcript refers to the detective as “the court” at this point. Again, however, this appears to be a 

typographical error. 
11 

the photo array during the time that Lacy made his identification. Traverse (ECF No. 10, at 

PAGEID #536). He further contends that Lacy identified another person prior to identifying 

Petitioner as the perpetrator of the offense. (Id. at PAGEID #539). However, the record does 

not support these allegations. The record does not indicate that the photo array was unduly 

suggestive, and it contains no evidence of any improper or suggestive conduct on the part of the 

police. Likewise, the record does not support Petitioner’s claim that police put Petitioner’s name 

underneath his photograph when they asked Lacy to make an identification. Petitioner has failed 

to rebut the presumption of correctness afforded to the state court’s factual findings in this 

regard. Lacy recognized Petitioner, knew him from prior contacts, and made his identification 

on this basis. This Court has reviewed the photographic array used by police. It does not 

indicate that police identified Petitioner’s photograph and does not appear unduly suggestive in 

any other respect. 

 Claim one is without merit. 

 B. Claim Two 

 In claim two, Petitioner asserts that the trial court improperly admitted his statements to 

police as obtained in violation Miranda. Petitioner states that he was intoxicated and under the 

influence of alcohol and Percocet when police interviewed him and therefore did not knowingly, 

intelligently, or voluntarily waive his Miranda rights. Petitioner maintains that he twice 

requested to terminate the interview, but the police improperly failed to honor his requests and 

illegally continued to question him. Petitioner argues that the videotape of his interview with 

police will support his claim that the appellate court unreasonably applied federal law when it 

rejected his claim, as it shows that his speech was slurred, he had difficulty staying awake, and 

that he told police he felt “pretty faded” at the time. 
12 

The state appellate court denied Petitioner’s claim, reasoning in relevant part as follows: 

Police also found and interviewed Jones. Jones executed a standard 

rights waiver. Jones indicated that he had taken Percocet and 

downed about a half liter of vodka prior to being asked to waive 

his various rights. Jones indicated that he understood his rights and 

was willing to speak to police without the benefit of counsel and 

without invoking his right to remain silent before starting the 

interview. However, part way through the interview, Jones 

indicated a reticence to talk. The officer questioning Jones 

continued asking questions anyway. 

A different police officer was involved in transporting Jones from 

the after hours place where Jones was arrested to police 

headquarters for questioning. This officer, Officer Mrsnik, testified 

that while on the way to police headquarters and in reference to no 

questions, Jones said “All this for a fight,” or words to that effect.4

The words uttered by Jones during his time in the cruiser while 

being transported were clearly uttered voluntarily and therefore 

were admissible against him had the case proceeded to a trial. The 

trial court judge was correct to overrule the motion to suppress 

statements with respect to those words. 

The admissibility of all or part of the interview of Jones at police 

headquarters is more problematic, especially the parts of the 

interview which followed what could be construed as an attempt 

by Jones to invoke his right to remain silent. That interview was 

recorded in its entirety and the recording is in the record before us 

on appeal. At the beginning of the CD, Jones indicates that he had 

had a liter or a half liter of vodka within the last 12 to 24 hours. He 

also acknowledges having one or more 15mg tablets of Percocet. 

Yet, he speaks coherently, if relatively slowly, throughout the 

interview. Given the demeanor of Jones displayed in the CD the 

trial court could reasonably conclude that Jones began the 

interview with a knowing, intelligent and voluntary waiver of his 

Fifth Amendment rights. 

The rights waiver reviewed with Jones indicated that Jones could 

stop answering questions at any time. This leads to the second 

inquiry, namely whether or not Jones invoked his right to stop 

answering questions part way through the interview. 

Once Jones was informed that he had already been charged with 

felonious assault and that he was going to jail, his demeanor 

 

4

 Petitioner does not challenge the admissibility of his statements to Officer Mrsnik. 
13 

changed. He acknowledged that he had had a fight with his brother 

earlier in the evening, but became reticent to talk about his 

encounter with Samuel Lacy. Still, he acknowledged being at 

Schrock Tavern and having an encounter with security personnel at 

the tavern. 

Being reticent to talk to police is not the same as invoking the right 

to remain silent. Jones seemed to want to stop the interview but 

never stopped answering questions. His desire to end the interview 

was never clearly communicated such that the trial court could find 

that Jones had invoked his right to remain silent. We cannot say 

the trial court erred in allowing the entire interview to be construed 

as being admissible had there been a trial. 

The second assignment of error regarding the suppression of the 

statements made at police headquarters is overruled and during the 

transporting is overruled. 

State v. Jones, 2015 WL 7902800, at *1-2. 

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal 

case to be a witness against himself.” The privilege against self-incrimination prohibits the 

government from using any statement against a criminal defendant “stemming from custodial 

interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to 

secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). 

“[B]y custodial interrogation, we mean questioning initiated by law enforcement officers after a 

person has been taken into custody or otherwise deprived of his freedom of action in any 

significant way.” Id. A person being questioned in a custodial interrogation must be warned 

“that he has the right to remain silent, that any statement he does make may be used as evidence 

against him, and that he has the right to the presence of an attorney, either retained or appointed.” 

Id. A suspect subject to custodial interrogation may waive his Miranda rights, “provided the 

waiver is made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. Waiver 

depends on the particular facts and circumstances of the case, including the background, 
14 

experience, and conduct of the accused. See Bush v. Warden, S. Ohio Corr. Facility, 573 F. 

App’x 503, 510 (6th Cir. 2014) (citing Edwards v. Arizona, 451 U.S. 477, 483 (1981). 

If, however, he indicates in any manner and at any stage of the 

process that he wishes to consult with an attorney before speaking 

there can be no questioning. Likewise, if the individual is alone 

and indicates in any manner that he does not wish to be 

interrogated, the police may not question him. The mere fact that 

he may have answered some questions or volunteered some 

statements on his own does not deprive him of the right to refrain 

from answering any further inquiries until he has consulted with an 

attorney and thereafter consents to be questioned. 

Miranda, 384 U.S. at 444–45. “[T]he suspect must unambiguously request counsel.” Davis v.

United States, 512 U.S. 452, 459 (1994). 

Although a suspect need not “speak with the discrimination of an 

Oxford don,” post, at 2364 (SOUTER, J., concurring in judgment), 

he must articulate his desire to have counsel present sufficiently 

clearly that a reasonable police officer in the circumstances would 

understand the statement to be a request for an attorney. If the 

statement fails to meet the requisite level of clarity, Edwards does 

not require that the officers stop questioning the suspect. 

Id. Where a suspect’s request to cease questioning is “ambiguous or equivocal,” cessation of 

questioning is not required. See Tolliver v. Sheets, 530 F. Supp. 2d 957, 994 (S.D. Ohio 2008) 

(citing Calhoun v. McKee, No. 05-74614, 2007 WL 1452911 (E.D. Mich May 15, 2007) 

(quoting Davis v. United States, 512 U.S. 452, 459 (1994))). The defendant must clearly and 

unequivocally assert his right to silence before police are required to stop questioning him. 

United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir. 2000). Additionally, Miranda does not 

prohibit the admission of voluntary statements made while an accused is in police custody in the 

absence of express police questioning or its equivalent. United States v. Murphy, 107 F.3d 1199, 
15 

1204 (6th Cir.1997) (“where a defendant makes a voluntary statement without being questioned 

or pressured by an interrogator, the statements are admissible despite the absence of Miranda 

warnings”). The United States Court of Appeals for the Sixth Circuit has held that, absent 

coercion, a waiver will be deemed voluntary even where the defendant was under the influence 

of an intoxicating medication or had been drinking heavily at the time. United States v. Miller, 

562 F. App’x 272, 290 (6th Cir.) (citing United States v. Dunn, 269 F. App’x 567, 572 (6th Cir. 

2008)), cert. denied sub. nom. Dorsey v. United States, 135 S. Ct. 184 (2014). 

Other circuits, in likewise upholding Miranda waivers, have done 

so despite drug impairment. See, e.g., United States v. Burson, 531 

F.3d 1254, 1258 (10th Cir. 2008) (“[D]efendant must be impaired 

to a substantial degree to overcome his ability to knowingly and 

intelligently waive his privilege against self-incrimination.”); 

United States v. Cristobal, 293 F.3d 134, 143 (4th Cir. 2002) 

(“Medical records indicating that a suspect had been given 

narcotics, with no supporting evidence as to the effects of those 

narcotics (on the individual or even in general) are not sufficient to 

render a waiver of Miranda rights unknowing or unintelligent.”); 

United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) 

(“Intoxication and fatigue do not automatically render a confession 

involuntary; rather, the test is whether these mental impairments 

caused the defendant's will to be overborne.”) * * * [T]he Tenth 

Circuit held that a hospitalized defendant recovering from gunshot 

wounds and laboring under the influence of a painkiller, but who 

nonetheless was “alert and responsive” during questioning, 

knowingly and intelligently waived his rights. United States v. 

Morris, 287 F.3d 985, 989 (10th Cir. 2002). 

United States v. Montgomery, 621 F.3d 568, 573-74 (6th Cir. 2010). In cases involving Miranda

waivers by intoxicated defendants, “courts examine the ‘totality of the circumstances,’ including 

the suspect’s ‘age, experience, education, background, and intelligence, and . . . whether he has 

the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and 

the consequences of waiving those rights.’” Id. at 573 (quoting Fare v. Michael C., 442 U.S. 
16 

707, 725 (1979)). A statement obtained by police in violation of Miranda is subject to the 

harmless error doctrine. Tolliver, 530 F. Supp. 2d at 994 (citing Arizona v. Fulminante, 499 U.S. 

279, 310 (1991)). 

Officer Brian Wildman interviewed Petitioner at police headquarters at approximately 

5:52 a.m.. Transcript (ECF No. 6-2, at PAGEID ##342, 389). He did not notice anything 

unusual about Petitioner’s behavior or demeanor at that time. Id. 

He appeared . . . fine to me. We went over the questions at the 

bottom of the constitutional rights waiver form. He indicated he 

had been drinking, but he did not appear intoxicated to me. I 

thought he was lucid. . . . I couldn’t smell the odor of alcohol[.] 

Id. The videotape of that interview was played during the hearing on the motion to suppress 

evidence. Petitioner indicated that he had been advised of his Miranda rights many times 

previously. (Id. at PAGEID #358). He had a high school education. (Id.) He had consumed a 

half liter of vodka and stated, “I am intoxicated right now.” (Id. at PAGEID #359). “Like, I’m, 

I’m pretty faded, you know, this, this’ll wake you up a little bit, you know; but I’m there and I 

ain’t about to throw up or pass out or nothing.” (Id. at PAGEID #360). He said he understood 

all the questions. (Id.). He had taken 15 mg. of Percocet between 11:30 and 12:00. (Id. at 

PAGEID ##360-361). Wildman advised him of his Miranda rights. Petitioner repeatedly 

indicated that he understood. (Id. at PAGEID ##361-362). Before making any statements, he 

asked to be advised of the charges against him. Wildman informed him that he had been charged 

with felonious assault. (Id. at PAGEID #363). Petitioner stated that he had gotten into a fight 

with his brother earlier in the evening. (Id. at PAGEID #364). 
17 

THE DETECTIVE: Every officer that’s brought you up here 

keeps saying you admit you got into an altercation with some 

bouncers and that was it. 

THE DEFENDANT: Yeah. I’m always fighting, you know, like, 

I’m a fighter, like. You know what I’m saying? Like, I told them 

that, yeah, it’s like at the club I was at, I got into this whole thing 

with – (inaudible) – some dog like that. 

 

(Id. at PAGEID #365). He had been at the Schrock Tavern and acknowledged that he had had 

problems with security there in the past. (Id. at PAGEID #366). 

I don’t know, man. I don’t even really know if I want to talk. I’m 

already going to jail, like. Ain’t nothing I’m going to say right 

now to get me out of here. They didn’t even tell me that I was 

charged with nothing or anything. They just say I had to come in 

here and talk to you and now you telling me I’m charged. 

*** 

THE DEFENDANT: And I’m already going to jail, like. So I 

really – 

THE DETECTIVE: I’m trying to get your explanation for – 

THE DEFENDANT: (Inaudible) – I understand. 

THE DETECTIVE: * * * I’m just trying to get your explanation 

for what occurred . . . . 

(Id. at PAGEID #367). Petitioner then indicated that a couple of men had grabbed him and told 

him that he could not go into the bar. (Id. at PAGEID ##367-368). He turned around and 

swung. (Id. at PAGEID #368). He denied using a knife. “I don’t understand why this is 

felonious assault. I break his jaw?” (Id. at PAGEID #369). 

THE DETECTIFVE: You cut him with a knife. 

THE DEFENDANT: I ain’t cut him with no knife. 
18 

THE DETECTIVE: You cut him with a knife. It’s right on tape, dude. 

THE DEFENDANT: I ain’t have no knife. 

*** 

THE DETECTIVE: He’s split open. You want me to go get a picture of it? 

THE DEFENDANT: Yeah. I didn’t have no knife, though. 

Honestly. I have no knife. It may have been my ring. I ain’t have 

no knife. I don’t need to use no knife. I fight all the time. Look at 

my hands, man, beat up. My knuckles swollen and everything, 

man, from punching on dude and stuff, man. 

THE DETECTIVE: You’re just saying you threw a punch and cut 

him? 

THE DEFENDANT: * * * Yeah. I didn’t cut him. I ain’t have 

no knife. 

(Id. at PAGEID ##369-370). Petitioner admitted throwing a couple of punches, but repeatedly 

denied using a knife. (Id. at PAGEID ## 371, 373, 385, 387). 

 This Court has reviewed the entire record, including the videotape of the interview with 

police. Petitioner appears to be lucid and coherent and to understand what is happening. He 

indicates that he understands. His speech is not slurred. He asks appropriate questions. 

Although he mentions that he has no reason to speak with police, because they have already 

decided to file charges against him, he never requests counsel or indicates that he wishes to cease 

the police interview. To the contrary, he continues responding to questions and asking questions 

of his own. As discussed, he denies use of a knife repeatedly. The police did not engage in 

coercive tactics. The totality of the circumstances supports the state court’s conclusion that 

Petitioner knowingly, intelligently, and voluntarily waived his Miranda rights and agreed to 

speak with police. Moreover, the record does not indicate that he ever clearly and unequivocally 
19 

indicated that he no longer wished to speak to police or asserted his right to remain silent. In 

view of this record, Petitioner has failed to establish that relief is warranted. 

 Claim two is without merit. 

 

III. Recommended Disposition 

 Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

 

IV. Procedure on Objections 

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

days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or 

in part, the findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

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

 
20 

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/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE