1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

CURTIS MOODY, 

Petitioner, : Case No. 3:18-cv-139 

- vs - District Judge Walter H. Rice 

Magistrate Judge Michael R. Merz 

TOM SCHWEITZER, Warden, 

 Lebanon Correctional Institution 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This is a habeas corpus case brought pro se by Petitioner Curtis Moody to obtain relief 

from the state court conviction which has resulted in his imprisonment in the custody of 

Respondent Warden Schweitzer. The case is before the Magistrate Judge for report and 

recommendations on the merits upon consideration of the Petition (ECF No. 1), the State Court 

Record (ECF No. 15), the Answer/Return of Writ (ECF No. 16) and Petitioner’s Reply (Traverse 

Brief)(ECF No. 22). 

Procedural History 

 Petitioner was indicted by the Montgomery County Grand Jury on two counts each of 

felony murder, felonious assault, and having weapons while under a disability, all arising from the 

shooting death of Jeffrey Farr on July 17, 2014. After his motions to suppress were denied, a jury 

convicted Moody of the murder and assault charges, and the trial judge convicted him on one of 
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the two weapons charges. Moody was sentenced to eighteen years to life consecutive to a threeyear sentence in another case. He appealed to the Second District Court of Appeals which affirmed 

the convictions. State v. Moody, 2016-Ohio-8366, 2016 Ohio App. LEXIS 5229 (2nd Dist. Dec. 

23, 2016), appellate jurisdiction declined, 149 Ohio St. 3d 1421 (2017). 

 On January 18, 2017, Moody filed in the trial court a petition for post-conviction relief 

under Ohio Revised Code § 2953.21. The trial court dismissed the petition as untimely and on the 

merits (State Court Record, Ex. 27). The Second District affirmed on both bases. State v. Moody, 

2018-Ohio-2561, 2018 Ohio App. LEXIS 2746 (2nd Dist. Jun. 29, 2018), and Moody did not appeal 

this decision to the Supreme Court of Ohio. 

 On June 12, 2017, Petitioner filed a Delayed Application for Reopening the direct appeal 

to raise a claim of ineffective assistance of appellate counsel (State Court Record, ECF No. 15, 

Ex. 39). The Second District denied relief. State v. Moody, CA Case No. 26926 (2nd Dist. Jul. 25, 

2017)(copy at State Court Record, ECF No. 15, Ex. 41), and the Supreme Court of Ohio declined 

appellate jurisdiction. Id. at Ex. 46. Thereafter on June 8, 2018, the Second District denied 

Moody’s successive Rule 26(B) application to reopen. 

 Moody mailed his Habeas Corpus Petition to the Sixth Circuit Court of Appeals on April 

17, 2018 (ECF No. 1-1); it was eventually filed on this Court’s docket on April 27, 2018. Moody 

pleads the following Grounds for Relief: 

Ground One: [Denial of Motion to Suppress] 

Supporting Facts: The trial court erred in failing to suppress the 

photo identification. 

Ground Two: [Denial of Continuance] 

Supporting Facts: The trial court denied Moody a fair trial when 

it refused to grant the continuance motion based on newly-disclosed 
3 

evidence which was material to the outcome of the trial which was 

a Brady violation by prosecution. 

Ground Three [Trial Court abuse of discretion] 

Supporting Facts: It was an abuse of discretion for the court to 

permit Zanfta White and Rhonda Alves to be designated as a court 

witness. 

Ground Four: [Prejudicial Hearsay] 

Supporting Facts: Multiple witnesses introduced hearsay 

statements which did prejudice Moody denying him due process and 

a fair trial. 

Ground Five: Fraud on the Court 

Supporting Facts: The issue of fraud upon the court was presented 

in my 26(B) delayed appeal which was pending and presented to 

post-conviction relief as well. 

(ECF No. 1, PageID 4, 6, 7, 8, 9). 

 By amendment, Moody added 

Ground Six: Ex Parte Communications 

Supporting Facts: The trial court erred when they allowed ex parte 

communications to proceed without correction which did violate the 

defendant’s Fifth and Sixth Amendment of United States 

Constitution as well as rights provided b y statutes authorizing the 

defendant’s presence at all stages of trial. 

(ECF No. 7, PageID 35-36). 
4 

Analysis 

Ground One: Improper Photo Identification 

 In his First Ground for Relief, Moody claims he was denied due process and a fair trial 

when the trial court failed to suppress the results of the pretrial photo identifications. Moody 

presented this claim on direct appeal as his First Assignment of Error and the Second District 

decided it as follows: 

II. Pretrial Photo Identifications 

 [*P9] In his first assignment of error, Moody claims that the trial 

court "erred in failing to suppress the photo identification[s] of 

Moody," which violated his right to due process. 

 [*P10] "Due process requires suppression of pre-trial identification 

of a suspect only if the identification procedure was so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of misidentification." Neil v. Biggers, 409 U.S. 188, 196-

97, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). 

 [*P11] The defendant must first show that the identification 

procedure was unduly suggestive. "A lineup is unduly suggestive if 

it steers the witness to one suspect, independent of the witness's 

honest recollection." (Citations omitted.) State v. Adams, 144 Ohio 

St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 208. If the pretrial 

identification procedure was not unfairly suggestive, any remaining 

questions as to the identification's reliability go to the weight of the 

identification, not its admissibility, and no further inquiry into the 

reliability of the identification is required. Id. at ¶ 209; State v. 

Williams, 2d Dist. Montgomery No. 26357, 2015-Ohio-1403, ¶ 13. 

 [*P12] If, on the other hand, the defendant shows that the pretrial 

identification procedure was unduly suggestive, the court must then 

consider whether the identification, viewed under the totality of the 

circumstances, is reliable despite the suggestive procedure. Id. In 

reviewing the likelihood that the circumstances resulted in a 

misidentification, courts have considered the opportunity of the 

witness to view the perpetrator at the time of the offense, the 
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witness's degree of attention, the accuracy of the witness's prior 

description of the perpetrator, the level of certainty demonstrated by 

the witness at the confrontation, and the length of time between the 

crime and the confrontation. Neil at 199-200; Manson v. Brathwaite, 

432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Chaffin, 

2d Dist. Montgomery No. 25220, 2014-Ohio-2671, ¶ 16. 

 [*P13] Reliability of the pretrial identification is the linchpin in 

determining its admissibility. Manson at 114. "So long as the 

identification possesses sufficient aspects of reliability, there is no 

violation of due process." State v. Sherls, 2d Dist. Montgomery No. 

18599, 2002-Ohio-939, 2002 WL 254144, *3 (Feb. 22, 2002). 

 [*P14] We review a trial court's refusal to suppress a pretrial 

identification for an abuse of discretion. State v. Wilson, 2d Dist. 

Montgomery No. 22624, 2009-Ohio-1038, ¶ 19. 

 [*P15] According to the evidence at the suppression hearings, 

Detective Thomas Cope, a homicide detective with the Dayton 

Police Department, was in charge of the investigation of the 

shooting death of Jeffrey Farr on July 17, 2014. Soon after the 

investigation began, Moody became a suspect in the shooting. 

 [*P16] On July 21, 2014, Cope created a photo spread with six 

photographs using an application called JusticeWeb. Cope used the 

latest jail book-in photograph for Moody that was on JusticeWeb — 

a photo from October 2013 -- and used default parameters for the 

program to find comparable photographs. Under the default 

parameters, the program identified individuals that were within five 

years of Moody's age, within four inches of his height, and within 

25 pounds of his weight. Cope provided Moody's race, hair color, 

eye color, and gender as additional parameters. The 

computer identified several hundred comparable individuals for the 

"filler" photographs for the photo line-up. 

 [*P17] Detective Cope manually reviewed the computer-identified 

comparable photographs and looked for people with similar 

hairstyles, facial features, photo backgrounds, and skin complexion 

in an effort to make the photographs "as homogeneous as possible 

so there's not one that stands out over the others." Cope selected five 

photographs, and the program created a photo spread, positioning 

the photographs within the spread at random (Supp. State's Ex. 1/Tr. 

State's Ex. 374 ). Detective Cope testified that he failed to "save" 

the photo spread, so that he could reprint it at a later date. When 

Cope printed the photo spread, one of the pages listed each 

individual's name and birthdate underneath his respective photo; 
6 

Cope testified that this page is kept separately from the rest of the 

photo spread packet. 

 [*P18] The July 21 photo spread was shown to Charles Dozier. 

Dozier identified the individual in photo #1 as the person who "may 

have shot Jeff," and he initialed next to the photograph he selected. 

Dozier indicated to the officer who presented the photo spread that 

"this guy resembles him." Moody's photo was photo #6 in the July 

21 photo spread. 

 [*P19] On July 28, 2014, Detective Cope used JusticeWeb to 

create a new photo spread. He used Moody's October 2013 

photograph and selected five filler photographs from the hundreds 

of photographs that were generated using the same criteria as before. 

Two of the five filler photos were the same as those in the July 21 

photo spread, and three of the filler photos were of new people. The 

individual that Dozier had selected was not included in the five filler 

photos. Detective Cope saved the photo spread as a file on his 

computer so that he could access it again at a later date. 

 [*P20] Cope had JusticeWeb generate two photo spread packets 

with these six individuals (Moody plus the five filler photos). 

(State's Ex. 2/31 and 3/35.) Although the six photographs were the 

same in both Exhibits 2 and 3, the computer randomly positioned 

the photographs in different positions. 

 [*P21] Detective Rod Roberts, an officer who did not have any 

involvement in the investigation into Farr's shooting, showed State's 

Exhibit 2 to Stanley Wilson and State's Exhibit 3 to Raymond 

Nicholson in different rooms at the police station. Cope did not 

provide Roberts any information about the suspect or the 

investigation. 

 [*P22] Roberts testified that he first administered the photo spread 

to Wilson. Prior to showing the photo spread to Wilson, Roberts 

read the photo spread instructions to Wilson verbatim. The 

instructions read: 

I am going to show you a group of photographs. This group 

of photographs may or may not contain a picture of the 

person who committed the crime now being investigated. I 

do not know who the suspect is. Keep in mind that hair 

styles, beards, and moustaches may be easily changed. 

Also, photographs may not always depict the true 

complexion of a person. Pay no attention to any markings 

or numbers that may appear on the photos or any 
7 

differences in the type or style of the photographs. When 

you have looked at all of the photos, tell me whether or not 

you see the person who committed the crime or any other 

person you recognize. Do not tell other witnesses that you 

have or have not identified anyone. 

Roberts indicated on the form that he was a blind administrator. 

 [*P23] Wilson identified Moody's photo, which was photo #2. 

Detective Roberts asked Wilson to circle the photograph, initial it, 

and sign at the bottom of the page. Roberts also asked Wilson to 

write the number of the photograph he had selected on page 2 of the 

packet, write what the identified person did, indicate his percentage 

of certainty, and sign at the bottom of the page. On page 4 of the 

packet, Wilson put a checkmark next to "YES" for photo #2 and 

wrote, "He shot Jeff Farr." Detective Roberts then returned the 

packet to Detective Cope. 

 [*P24] Within minutes, Detective Roberts went into a separate 

interview room to show a photo spread to Nicholson. Roberts 

employed the same procedure when he presented the photo spread 

to Nicholson. Nicholson selected photo #3, which was Moody's 

photo. After Nicholson made his identification and completed the 

requested portions of the photo spread packet, Nicholson returned 

the packet to Detective Cope. 

 [*P25] On October 22, 2014, Detective Cope generated another 

photo spread using the same six photographs that he had selected on 

July 28 (State's Ex. 4/32). JusticeWeb scrambled the photographs so 

that they were in a different order than either of the photo spreads 

printed on July 28; Moody's photograph was photo #6. 

 [*P26] Detective Cope asked Officer Matt Heiser, an officer who 

was not involved in the investigation, to present the photo spread to 

Walter Jackson. The two officers drove to Jackson's residence, and 

Cope explained to Jackson that Heiser would be conducting a lineup 

with him (Jackson). Detective Cope then went outside the residence 

while Officer Heiser presented Jackson with the photo spread. 

 [*P27] As with Detective Roberts, Officer Heiser read the 

instructions to Jackson verbatim and then gave Jackson the photo 

spread. Jackson identified Moody's photo. Heiser asked Jackson to 

circle it, initial it, date it, and sign at the bottom. Jackson complied. 

Officer Heiser wrote on page 2, "As soon as I handed him the photo 

he pointed at number 6 and said that's him." Heiser checked "YES" 

next to "photo #6" on page 2, indicating that he had selected that 
8 

photo. At this point, Heiser put the photo spread packet back in a 

folder and walked out of the house to get Detective Cope. 

 [*P28] On July 26, 2015, Detective Cope created another photo 

spread to show to Cosby, again using the six-photo photo spread that 

he had created on July 28 (State's Ex. 6/36). When he printed the 

photo spread, the order of the photos was again reshuffled. 

 [*P29] Detective Cope asked Detective Cayce Cantrell, a detective 

with the Special Victim's Unit, to administer a photo spread. 

Cantrell was unfamiliar with Cope's homicide investigation. Cope 

introduced Cantrell to Garry Cosby, the witness, and Cantrell took 

Cosby into the homicide department's conference room and read 

him the instructions on page one of the photo spread packet. 

Detective Cantrell initialed the instructions and marked that she was 

a blind administrator. 

 [*P30] Cantrell placed the photo spread in front of Cosby, and he 

pointed to photo #2, which was Moody's photo, within 15 seconds. 

Cantrell had Cosby circle and initial the photo that he had selected 

and sign the page. On page 2 of the packet, Cantrell marked that 

Cosby had selected photo #2 and had not selected photos #1 and #3-

6. On page 3, Cosby filled in the statement that he recognized the 

person in photo #2 as the person who "shot Jeff." Cosby wrote that 

he was "sure that's him." Cosby signed the bottom of page 3. 

Cantrell signed as a witness, and returned the photo spread to 

Detective Cope. 

 [*P31] Moody moved to suppress the pretrial identifications of 

him as impermissibly suggestive. The trial court overruled the 

motion, reasoning: 

Defendant did not contest that the witnesses who identified 

him through the photo line-up had the opportunity to 

observe him on the night in question. The Court has 

reviewed the line-ups generated by Cope and finds them to 

be appropriate. Defendant does not stand out in any way 

and the other persons in the line-ups have similar physical 

characteristics. Further, the testimony of Cope, Roberts and 

Hieser [sic] establishes that the line-ups were appropriately 

administered by blind administrators. Accordingly, the 

photo line-up identifications will not be suppressed. 

 [*P32] On appeal, Moody focuses on the fact that Charles Dozier 

identified a person from the July 21 photo spread who was not 

included in any of the subsequent photo spreads that were shown to 
9 

witnesses. Where witnesses were shown versions of the photo 

spread prepared on July 28 (which did not contain the individual that 

Dozier had identified), witnesses identified Moody. 

 [*P33] Upon review of the evidence from the suppression hearing, 

including the photo spread packets presented to the witnesses, the 

identification procedure employed by the Dayton police was not 

unduly suggestive. The photo spreads were presented by blind 

administrators, and there was nothing in the manner in which the 

officers administered the photo spreads that would make the 

presentations unduly suggestive. 

 [*P34] As to the photo arrays generated by the photographs 

selected by Detective Cope on July 28, the arrays were computergenerated, using characteristics that were similar to Moody. The 

photographs had similar backgrounds, and the individuals had 

similar facial features and hairstyles. We find nothing unduly 

suggestive in the photographs that were selected. The fact that the 

photographs selected on July 28 did not include the individual 

identified by Charles Dozier on July 21 did not render the July 28 

photo spread (and the additional photo spreads later created from the 

same group of photographs) unduly suggestive. The fact that the 

subsequent photo spreads did not contain the picture identified by 

Dozier in the first was thoroughly explored by defense counsel. In 

addition, each of the witnesses was told prior to being shown the 

photo spread that the perpetrator's photograph might not be present 

and that some physical features might have changed. 

 [*P35] The trial court did not err in overruling Moody's motion to 

suppress. The first assignment of error is overruled. 

State v. Moody, supra. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. 

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 
10 

 Examination of the Second District’s decision on the First Assignment of Error shows that 

Court applied the controlling Supreme Court precedents, Neil v. Biggers, 409 U.S. 188 (1972), and 

Manson v. Brathwaite, 432 U.S. 98 (1977). Moody’s Traverse does not suggest any way in which 

the Second District’s decision was either contrary to or an objectively unreasonable application of 

that case law or rested upon an unreasonable determination of the facts (ECF No. 22, PageID 1572-

74. His argument rests on the claim that a person named D.W. was identified as the shooter by 

witness Charles Dozier, but D.W.’s photograph was not included in subsequent photo arrays 

shown to other witnesses who identified Moody. That does not make any of the arrays 

unconstitutionally suggestive. Moody’s First Ground for Relief should be denied. 

Ground Two: Denial of Continuance 

 In his Second Ground for Relief, Moody claims the trial court denied him a fair trial and 

infringed his right to trial by jury when it denied a motion for continuance based on later disclosure 

of Brady material. 

 Moody raised this as his second assignment of error on direct appeal. The Second District 

noted that the still photograph to which objection was made had been produced by the State on 

Saturday, November 7, 2015, as part of a larger disclosure. State v. Moody, supra, at ¶ 40. Defense 

counsel made no written or oral motion for continuance and no showing of prejudice. Id. Moody 

also claimed that the late disclosure violated Brady v. Maryland, 373 U.S. 83 (1963), which held 

the state has a duty to disclose exculpatory and impeachment evidence in a criminal case. The 

Second District found that the evidence in question, assuming without deciding that it was Brady

material, was disclosed before trial and hence no Brady violation occurred. State v. Moody, supra, 
11 

at ¶ 45. 

 Contrary to the Second District’s finding, Moody claims an oral request for continuance 

was made, but examining the trial transcript at the place he cites (Tr. Tr. at 342-43, State Court 

Record ECF No. 15-3, PageID 823-24) does not show any such motion. Moreover, far from 

showing the late-disclosed material was Brady material, Moody argues that it was “used 

extensively for bolstering the state’s argument.” (Reply, ECF No. 22, PageID 1579). In other 

words, it was not exculpatory. 

The decision to grant or deny a motion for continuance lies within the sound discretion of 

the trial court and cannot be reversed absent a showing that the decision was arbitrary, 

unreasonable, or unconscionable. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). But there cannot 

be an unconstitutional denial of a continuance if none is requested and there was no request here. 

The Second Ground for Relief is without merit and should be dismissed. 

Ground Three: Trial Court Abuse of Discretion 

 In his Third Ground for Relief, Moody claims the trial court abused its discretion in 

designating Zanetta White and Rhonda Alves as court witnesses. This claim was raised as part of 

Moody’s Third Assignment of Error on direct appeal. The Second District found as a matter of 

fact that White was never designated as a court witness. State v. Moody, supra, at ¶58. Rhonda 

Alves is Moody’s mother and was only designated a court witness after her “initial evasive 

testimony.” Id. at ¶ 62. The court of appeals thus found no abuse of discretion in designating her 

as a court witness. Id.. 

 As indicated by the Second District, Ohio law treats the question of whether to designate 
12 

someone as a court witness as a matter committed to the trial judge’s discretion. Federal habeas 

corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson 

v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 

U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[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); see also Elmendorf 

v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248

(6th Cir. Apr. 23, 2018)(Thapar concurring). Whether or not a state trial judge has abused her or 

his discretion is not a constitutional question. To put it another way, abuse of discretion does not 

by itself rise to the level of a due process violation. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). 

Moody’s Third Ground for Relief should therefore be dismissed. 

Ground Four: Hearsay 

 In his Fourth Ground for Relief, Petitioner asserts that there were multiple instances of 

hearsay testimony admitted, some over objection and some to which his attorney did not object. 

 The assertion that inadmissible hearsay had been heard by the jury was presented to the 

Second District Court of Appeals as part of Moody’s Third and Fourth Assignments of Error and 

that court denied relief on these claims. State v. Moody, supra, at ¶¶ 63-79, 84-105. 

This Court cannot review hearsay issues raised in the Second District because all of them 

were raised and decided as state evidence law questions. To put it another way, the Constitution 

does not forbid hearsay evidence or concern itself with that issue unless the habeas court is dealing 
13 

with an alleged violation of the Confrontation Clause, which is not involved with the hearsay 

claims raised here. 

 Moody’s Ground Four should be dismissed because he did not present it as a constitutional 

claim to the Second District and it is not otherwise cognizable as a constitutional claim. 

Ground Five: Fraud on the Court/Prosecutorial Misconduct 

 Moody does not identify in his Petition what action or actions he claims constituted a “fraud 

on the court.” However, in his Reply/Traverse Brief, he argues the Fifth Ground for Relief as one 

of prosecutorial misconduct (ECF No. 22, PageID 1589-1597). Moody claimed the prosecutor 

engaged in misconduct in seven different ways in his Fifth Assignment of Error on direct appeal 

and the Second District decided the assignment as follows: 

VI. Prosecutorial Misconduct 

 [*P106] Moody's fifth assignment raises prosecutorial misconduct. 

He states that the prosecutor engaged in misconduct in seven 

respects: 

• Without declaring the witnesses hostile, the State continuously and 

with multiple witness used leading questions on direct examination 

• By introducing substantive and prejudicial evidence which 

otherwise would not have been made available through the guise of 

impeachment of Rhonda Alves and Zaneta White (and impeachment 

of Rhonda Alves by Detective Cope) 

• By failing to disclose to defense counsel cruiser cam videos 

intended for trial until two days prior to the trial which were later 

improperly used as substantive and prejudicial evidence 

• By instructing the jury as to whose testimony was credible and 

whose testimony was not credible in closing statements 

• By instructing the jury * * * that all elements were met 

• By using improper and inflammatory remarks in the rebuttal 

closing [argument] insinuating Defendant was lying and that 

defense counsel was taking them on detours in regards to evidence 

which was not favorable to the state 
14 

• By using a summation which asked that justice be extended even 

to [the apartment complex]. 

For the reasons set forth in other assignments of error, above, we 

reject the first, second, and third claims of prosecutorial misconduct. 

 [*P107] The test for prosecutorial misconduct is whether the 

prosecutor's remarks or questions were improper and, if so, whether 

they prejudicially affected substantial rights of the accused. State v. 

Exon, 2d Dist. Clark No. 2014-CA-106, 2016-Ohio-600, ¶ 40, citing 

State v. Jones, 90 Ohio St.3d 403, 420, 2000 Ohio 187, 739 N.E.2d 

300 (2000). A prosecutor's conduct during trial cannot be grounds 

for error unless the conduct deprives the defendant of a fair trial. 

State v. Williams, 2d Dist. Montgomery No. 24548, 2012-Ohio4179, ¶ 51, citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 

N.E.2d 394 (1987). The focus of the inquiry [**46] is on the 

fairness of the trial, not on the culpability of the prosecutor. State v. 

Bey, 85 Ohio St.3d 487, 496, 1999 Ohio 283, 709 N.E.2d 484 

(1999). 

 [*P108] Where it is clear beyond a reasonable doubt that the jury 

would have found the defendant guilty, even absent the alleged 

misconduct, the defendant has not been prejudiced, and his 

conviction will not be reversed. See State v. Underwood, 2d Dist. 

Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review 

allegations of prosecutorial misconduct in the context of the entire 

trial. State v. Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-

Ohio-2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 

S.Ct. 2464, 91 L.Ed.2d 144 (1986). 

 [*P109] In general, prosecutors enjoy a wide degree of latitude 

during closing arguments. State v. Whitfield, 2d Dist. Montgomery 

No. 22432, 2009-Ohio-293, ¶ 12. They may freely address what the 

evidence has shown and what reasonable inferences may be drawn 

from that evidence. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 

293 (1990); State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629, 

911 N.E.2d 309, ¶ 33 (2d Dist.). "However, prosecutors must refrain 

from making misleading insinuations and assertions as well as 

expressing personal beliefs or opinions regarding the defendant's 

guilt. Prosecutors must also refrain from alluding to matters 

unsupported by admissible evidence. 'It is a prosecutor's duty in 

closing arguments to avoid efforts to obtain a conviction by going 

beyond the evidence which is before the jury.'" (Citations omitted.) 

State v. Richmond, 2d Dist. Greene No. 2005 CA 105, 2006-Ohio4518, ¶ 15, quoting State v. Smith, 14 Ohio St.3d 13, 14, 14 Ohio B. 

317, 470 N.E.2d 883 (1984). 
15 

 [*P110] In addition, prosecutors may not make statements that are 

"so inflammatory as to render the jury's decision a product solely of 

passion and prejudice against the appellant." State v. Williams, 23 

Ohio St.3d 16, 20, 23 Ohio B. 13, 490 N.E.2d 906 (1986). "Where 

it appears that prosecutorial comments constituted an invitation to 

the jury to go beyond the evidence or were so flagrant as to incite 

the passions or prejudice of the jury, and thereby deny the accused 

a fair trial, prejudicial error may inhere." State v. Slagle, 8th Dist. 

Cuyahoga No. 55759, 1990 Ohio App. LEXIS 2426, 1990 WL 

82138, * 9 (June 14, 1990), citing State v. Price, 60 Ohio St.2d 136, 

140, 398 N.E.2d 772 (1979). 

 [*P111] Moody did not object to the prosecutor's closing or 

rebuttal argument. Accordingly, he has waived all but plain error. 

 [*P112] First, Moody claims that the prosecutor inappropriately 

vouched for the credibility of the State's witnesses. 

 [*P113] An attorney may not express a personal belief or opinion 

as to the credibility of a witness. State v. Jackson, 107 Ohio St.3d 

53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117, citing State v. 

Williams, 79 Ohio St.3d 1, 12, 1997 Ohio 407, 679 N.E.2d 646 

(1997). "In order to vouch for the witness, the prosecutor must imply 

knowledge of facts outside the record or place the prosecutor's 

personal credibility in issue." Id., citing State v. Keene, 81 Ohio 

St.3d 646, 666, 1998 Ohio 342, 693 N.E.2d 246 (1998). 

 [*P114] In contrast, "[a] prosecutor may comment upon the 

circumstances of witnesses in their testimony, including their 

interest in the case, their demeanor, their peculiar opportunity to 

review the facts, their general intelligence, and their level of 

awareness as to what is going on. The prosecutor may conclude by 

arguing that these circumstances make the witnesses more or less 

believable and deserving of more or less weight." (Citation omitted.) 

State v. Clay, 181 Ohio App.3d 563, 2009-Ohio-1235, 910 N.E.2d 

14, ¶ 47 (8th Dist.), quoted by State v. Jeffery, 2013-Ohio-504, 986 

N.E.2d 1093, ¶ 21 (2d Dist.). 

 [*P115] Moody cites the following statement by the prosecutor: 

* * * I told you how Jeffrey Farr was not alone at that lot. I told you 

how he was there with friends, acquaintances, people standing in 

close proximity to Jeffrey Farr. I told you how each of those 

witnesses would walk through those doors, how they'd take that 

stand and how they would tell you, credibly tell you, about the 
16 

events that unfolded on July 17th, 2014 at [the lot]. The State 

delivered on that promise. 

(Emphasis added.) 

 [*P116] The prosecutor then proceeded to discuss the testimonies 

of the State's witnesses. The prosecutor discussed what facts may be 

gleaned from the coroner's testimony regarding the wounds to Farr's 

body and summarized the testimonies of the eyewitnesses. The 

prosecutor repeatedly reminded the jurors that they were "the 

credibility judges of the witnesses" and that they would need to 

judge whether it was reasonable for various witnesses to have left 

the scene and for witnesses not to have come forward immediately 

after the shooting. 

 [*P117] Although the prosecutor stated that several witnesses 

testified "credibly," this part of his argument was immediately 

supported with references to the witnesses' testimony and the 

generally consistent story that the eyewitnesses and physical 

evidence provided. In short, the prosecutor's statements regarding 

the witnesses' credibility were supported by reference to the 

evidence presented, and not based on knowledge of facts outside the 

record or the prosecutor's personal belief in the witnesses. We find 

no improper vouching by the prosecutor. 

 [*P118] Second, Moody claims that the prosecutor improperly 

made derogatory comments about defense counsel during rebuttal 

closing argument by referring to defense counsel's arguments as 

"detours." The prosecutor stated: 

You know, [the other prosecutor] has given you an 

excellent road map to follow in arriving at your verdict, and 

please, if you remember anything that we say here this 

morning, remember this. Follow the evidence. Follow the 

testimony because it's only when you follow the evidence 

that you will be able to arrive at a true and just verdict. 

Don't be caught going down detours. What do I mean by 

that? Don't let yourselves be talked into going down a 

detour that the Defense suggests to you that is of no 

consequence to the case, that is nonsensical in nature. Stay 

true to the path and follow the evidence. 

What do I mean by detours that are of no real consequence? 

Things like no DNA found at the scene that matches back 

to the Defendant; things like no fingerprints were found, 

things like there was not a description of the gun that was 

given specifically by the witnesses; things like different 
17 

dates of statements. Those are just some examples of what 

I mean by detours, and we'll talk about it. 

Let me just say this. These detours will lead you to a dead 

end and it's only upon following the evidence and staying 

on the path that you will be able to reach a just true word. 

[sic.] 

What are some examples of other types of detours? Well, 

you all as the jurors are the arbiters of the fact. You decide 

the facts of the case. You will have to use your collective 

recollection when it comes to what the testimony was from 

each of the individual witnesses. And Defense Counsel 

made some statements up here as to what he said the 

witnesses testified to, and I made some notes because I just 

don't recall that being the fact or the case as to what these 

people testified to, and I will give you some examples. But 

you all will be the ones that have to decide based on your 

recollections. 

The prosecutor next discussed portions of different witnesses' 

testimony that the prosecutor said defense counsel had misreported. 

The prosecutor then argued that the factual circumstances of this 

case did not lend themselves to having DNA evidence or fingermark 

evidence. 

 [*P119] We find nothing in the prosecutor's remarks that rendered 

Moody's trial unfair. Although the prosecutor was critical of defense 

counsel's argument (as opposed to defense counsel personally), the 

prosecutor merely argued to the jury why defense counsel's 

argument should not be persuasive, why the absence of certain 

evidence was irrelevant to the case before them, and why the 

testimony of the witnesses, which implicated Moody, should be 

credited and given primary consideration. The prosecutor's 

characterization of defense counsel's arguments as "detours" was not 

unfairly prejudicial. 

 [*P120] Moody further cites as misconduct the prosecutor's 

statements that Moody "should not be rewarded" for the absence of 

DNA and fingermark evidence and the absence of the murder 

weapon itself. Viewed in the context of all of the closing arguments, 

we do not agree that this is misconduct. 

 [*P121] Defense counsel's closing argument focused on the lack 

of an investigation and the lack of physical evidence. Defense 

counsel noted that only Farr's DNA was found at the scene, there 
18 

were no cell phone records, there were no fingerprints, and there was 

no video recording of the incident. In asking the jury not to "reward" 

Moody for the lack of physical evidence, the prosecutor was 

emphasizing that the jury should consider the evidence before it, and 

that absence of certain evidence did not warrant an acquittal. This 

was within the scope of reasonable argument. 

 [*P122] Moody further contends that the prosecutor played to the 

emotions of the jury by commenting that Farr "is no longer with us 

and we can't hear from him." The prosecutor told the jury that Farr 

nevertheless spoke to them through his lack of defensive wounds 

(no physical altercation when shot), the location of his entrance 

wounds (shot from behind), the angle of the bullets (sitting down 

when shot), and the injuries caused by the bullets (couldn't move 

after his spine was severed and died quickly). The fact that Farr was 

deceased and could not testify was proven and not disputed. The 

prosecutor's statements were reasonable comments on the evidence 

presented by the coroner, and they asserted that the evidence from 

Farr's body substantiated the eyewitness testimony about what had 

occurred in the lot. 

 [*P123] Moody next points to statements by the prosecutor in 

rebuttal that "I guess they want you to think this is a conspiracy." 

The prosecutor continued: 

Everybody is lying except for the Defendant and they are 

somehow getting their stories together. In order to believe 

that, you would have to believe that Raymond Nicholson 

and Stanley Wilson and Gary Cosby and Charles Dozier 

somehow collaborated with [the coroner] with regard to the 

medical science. You have to ask yourself do you believe 

that? It's ridiculous. 

You know, we heard a lot of criticism about the witnesses 

in this case and something needs to be said about that 

because this defendant is the one that picked the witnesses. 

He chose those witnesses when he decided to gun down 

Jeffrey Farr in broad daylight in that dirt parking lot. 

Everyone that was there at that point became a witness in 

his case. He chose them. And now he wants to criticize 

them? To make fun of them because they were afraid to go 

to the police right away? 

To make you think they're liars because they didn't want to 

become involved in a murder case? Witness after witness 

told you the reasons why they delayed telling the police 

what they saw. If they had their preference, they wouldn't 
19 

have been sitting up here. They didn't want to become 

involved. Whether it was because of the neighborhood, 

whether it was because of fear, being labeled as a snitch — 

all of those. They told you. 

 [*P124] Again, these statements were in response to defense 

counsel's argument regarding the eyewitness evidence. Defense 

counsel had argued that six witnesses claimed to be at the scene, but 

none had "ever described what the shooter was wearing or given any 

description of the gun they now claim to have seen." Defense 

counsel emphasized that none of the witnesses had come forward 

and identified Moody as the shooter on the day of the shooting. 

Counsel noted that Nicholson, who later identified Moody in a photo 

spread, had originally told officers that the shooter was wearing all 

black and a mask. Defense counsel asked the jury, "Why the lies?" 

Viewing the transcript as a whole, we find the prosecutor's 

statements to be proper rebuttal argument. 

 [*P125] Finally, Moody claims that the prosecutor improperly 

appealed to the jury's emotions when he argued: "But thank 

goodness for Walter Jackson, and thank goodness for Raymond 

Nicholson, and Stanley Wilson because they did do the right thing. 

And because of that, we know the truth about what happened. And 

because they're brave enough to come in here, justice can extend out 

to [the apartment complex]." (Emphasis added.) Defense counsel 

did not object. 

 [*P126] "A prosecutor may legitimately call for justice or ask 

jurors to do their duty. However, a prosecutor may not ask a jury to 

punish a particular defendant for all of the crimes committed in the 

community." (Citation omitted.) State v. Jefferson, 2d Dist. Greene 

No. 2002 CA 26, 2002-Ohio-6377, ¶ 18. To the extent that the 

prosecutor suggested that a guilty verdict would provide justice for 

the larger community (the apartment complex), we do not find this 

isolated remark was prejudicial, let alone rises to the level of plain 

error, when viewed in the context of the entire trial. 

 [*P127] Moody's fifth assignment of error is overruled. 

State v. Moody, supra. 

The claims of prosecutorial misconduct that were raised on direct appeal were not repeated 

in the Petition; in fact, the Petition asserts “the issue of fraud upon the court was presented in my 

26(B) delayed appeal . . .” (Petition, ECF No. 1, PageID 9). Respondent’s counsel quite reasonably 
20 

understood the Fifth Ground for Relief as raising a claim of ineffective assistance of appellate 

counsel relating to failure to raise on appeal the use of an anatomical diagram with the coroner 

when he testified (Return, ECF No. 16, PageID 1483). Respondent therefore argued in response 

to that claim. 

 However, in his Traverse Brief, Moody does not argue his “fraud on the court” claim in his 

Fifth Ground for Relief. Instead, he argues a number of prosecutorial misconduct claims as 

Ground Five (ECF No. 22, PageID 1589-97). He has moved his “fraud on the court” claim later 

in the Traverse under the label “Ground Eight” Id. at PageID 1604. The “fraud on the court” claim 

is discussed below. 

 A petitioner cannot “amend” a habeas petition by raising new issues in a traverse. Under 

28 U.S.C. § 2242, amendment of a habeas petition is governed by Fed. R. Civ. P. 15. Claims 

raised for the first time in a traverse are not properly before a district court. Tyler v. Mitchell, 416 

F.3d 500, 504 (6th Cir. 2005); see also Jaloweic v. Bradshaw, 657 F.3d 293, 312 (6th Cir, 2011); 

Murphy v. Ohio, 551 F.3d 485, 502 (6th Cir. 2009). Moody has never moved to amend to add these 

prosecutorial misconduct claims. If he were to do so, the Magistrate Judge would deny the 

amendment as futile because the Second District’s decision on prosecutorial misconduct is neither 

contrary to nor an unreasonable application of Supreme Court precedent. 

 Moody’s prosecutorial misconduct claims, argued under Ground Five, are not properly 

before the Court and should be dismissed. 

Ground Six/Seven: Ex Parte Communications 

 In the Petition, Moody claimed the trial judge permitted ex parte communications in 
21 

violation of his Fifth and Sixth Amendment rights. He argues this claim in the Traverse Brief as 

Ground Seven. In briefing this issue in the Traverse, Moody quotes at length an in-chambers but 

on the record conference among counsel and the trial judge about the appropriate response to a 

jury note. Ex parte communication happens when a judge communicates with one party without 

the other party being present or with a jury with neither party present. There is no evidence here 

of any ex parte communication. The trial judge discussed the matter with counsel for both parties 

and then communicated with the jury exactly what had been agreed upon. 

 Moreover, any claim that this in-chambers conference constituted ex parte communications 

or was in some other way improper was procedurally defaulted when it was not raised on direct 

appeal. Under Ohio’s doctrine of res judicata in criminal cases, an issue which is capable of being 

raised and decided on direct appeal, as this issue was, is barred from later consideration. State v. 

Perry, 10 Ohio St. 2d 175 (1967). Ohio’s doctrine of res judicata in criminal cases, enunciated in 

Perry, is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 

432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 

417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 

155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 

(S.D. Ohio 2001). 

 Therefore Moody’s claim of unconstitutional ex parte communications is both without 

merit and procedurally defaulted because not raised on direct appeal. 

Ground Six (as argued in Traverse): Cumulative Error 

 In his Traverse Brief, Moody argues that cumulative errors in the trial deprive him of a fair 
22 

trial. As with his prosecutorial misconduct claims, this argument t is not properly before the Court 

because it was not pleaded in the Petition. Any request to amend to add a cumulative error claim 

would be futile because cumulative error does not constitute a constitutional violation. Sheppard 

v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), cert. denied, 132 S.Ct. 2751 (2011), citing Moore v. 

Parker, 425 F.3d 250, 256 (6th Cir. 2005), cert. denied sub nom. Moore v. Simpson, 549 U.S. 1027 

(2006); Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012), cert. denied sub nom. Moreland 

v. Robinson, 134 S. Ct. 110 (2013).

Ground Six/Eight: Fraud Upon the Court 

 In his Sixth Ground for Relief as pleaded in the Petition and Eighth as argued in the 

Traverse Brief, Moody claims fraud on the court was committed by the introduction of a forged 

“autopsy examination report of entrance and exit wounds.” (Traverse Brief, ECF No. 22, PageID 

1604). 

 As Moody states in his Petition, he raised this claim for the first time in his original 

Application for Reopening the direct appeal under Ohio R. App. P. 26(B)(ECF No. 1, PageID 9). 

Moody’s Application was untimely, filed well outside the ninety days allowed for such an 

application after the court of appeals entered judgment. The Second District denied the application 

on this basis. State v. Moody, Case No. CA26926 (2nd Dist. Jul. 25, 2017)(copy at State Court 

Record, ECF No. 15, Ex. 41, PageID 432). The court indicated that if it were to reach the merits, 

it would find there had been no fraud on the court: 

As for the autopsy diagram, the excerpt of the transcript provided by 

Moody indicates that defense counsel (not the prosecutor) 

questioned the chief deputy coroner, Dr. Lee Lehman, about an 

autopsy diagram (Defense Exhibit A) that purported to show the 
23 

entrance and exit wounds caused by the bullets that killed Jeffrey 

Farr, the victim. In response to those questions, Dr. Lehman 

indicated that he had not prepared the diagram, that he had never 

seen the diagram before, and that the diagram was inaccurate. 

During his direct examination, Dr. Lehman had testified about the 

location of the bullet wounds, and there was substantial evidence 

that Farr had been shot six times and died from his injuries. We find 

no reasonable probability that Moody would have prevailed on 

claims that the autopsy diagram was a fraud on the court and 

provided "insufficient" evidence at trial. 

Id. at PageID 433. 

 In his Traverse Brief, Moody quotes the portion of the transcript where the autopsy 

diagram, a defense exhibit, is being shown to Dr. Lehman by defense counsel Lachman. Lehman 

says he did not draw the diagram and repeatedly disavows its accuracy. Certainly Dr. Lehman 

committed no fraud on the court. Nor did the prosecution: this was a defense exhibit used in 

cross-examination by defense counsel. If defense counsel produced the diagram or had it drawn 

to use in cross-examination, he utterly failed to get Dr. Lehman to accept it as accurate. 

 In sum, any claim that use of the diagram at trial was fraud on the court was procedurally 

defaulted by failing to raise it on direct appeal. State v, Perry, supra. That procedural default is 

not excused by any ineffective assistance of appellate counsel because Moody procedurally 

defaulted any such claim by filing his 26(B) Application too late. Edwards v. Carpenter, 529 U.S. 

446 (2000). Finally, this claim is also without merit because Moody has not shown any fraud on 

the court. 
24 

Conclusion 

 Based on the foregoing analysis, it is respectfully recommended that the Petition herein be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

Circuit that any appeal would be objectively frivolous and therefore should not be permitted to 

proceed in forma pauperis. 

December 19, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).