1 

IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

DAURIN PATTON, 

Petitioner, : Case No. 3:17-cv-078 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

WARDEN, 

 Warren Correctional Institution, 

 : 

 Respondent. 

 REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the 

merits. Upon initial review of the Petition (ECF No. 1), the Court ordered the State to answer 

the Petition and set a date twenty-one days after the return was filed for Petitioner to file a 

reply/traverse (ECF No. 2). In compliance with the Order, the Attorney General has filed the 

state court record (“SCR”, ECF No. 6) and a Return of Writ (ECF No. 7). The time within 

which Petitioner was to have filed a reply has expired and no reply has been filed. The case is 

therefore ripe for decision. 

Procedural History 

 Petitioner was indicted by the Lucas County Grand Jury on December 6, 2011, on one 

count of aggravated robbery (Ohio Revised Code § 2911.01(A)(1)), with a firearm specification 

(Count 1); and two counts of aggravated murder (Ohio Revised Code § 2903.01(A) and (F)), 
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each with a firearm specification (Counts 2 and 3) (ECF No. 6, State Court Record Exhibit 1, 

PageID 33). The trial jury found him guilty as charged and sentenced to life imprisonment 

without parole (SCR, ECF No. 6, PageID 84). 

 Patton appealed to the Ohio Sixth District Court of Appeals raising the following 

assignments of error: 

1. The trial court erred by permitting the State to play the video of 

two alleged gang members standing with a semi-automatic “assault 

style” rifle. Patton’s Constitutional right to Confront Witnesses 

was violated and it was improper hearsay. 

2. The trial court erred and abused its discretion through the 

admission of the video, the Russian SKS 45 rifle, gang evidence 

and statements made by Serrano and her son were more prejudicial 

than probative. The video, rifle and other gang evidence was not 

relevant. 

3. The State failed to properly authenticate the You Tube video in 

violation of Evid.R. 901(A). As such, Patton was denied his right 

to a fair trial. 

4. The trial court erred by allowing the prosecutor to engage in 

improper impeachment of Patton’s alibi witness including an 

unprosecuted event while she was in junior high school and an 

allegation in a police report, neither of which resulted in a 

conviction. 

5. The verdicts were against the manifest weight of the evidence. 

6. The trial court erred by not granting Patton’s motion to suppress 

the out-of-court identifications made of Patton from photo arrays. 

The identifications were made contrary to Ohio statutory law and 

in violation of his right to due process of law. 

7. Patton did not receive the effective assistance of counsel to 

which he has a Constitutional right. 

8. If this Court agrees with certain assignments of error and holds 

in favor of Patton, then the state’s case must fail due to insufficient 

evidence. 
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9. The prosecutor engaged in a pattern of misconduct that was 

intentionally designed to prejudice the jury in order to obtain a 

conviction at all costs. 

(SCR, ECF No. 6, PageID 91.) The Sixth District affirmed the convictions and sentence. State v. 

Patton, 2015-Ohio-1866, 2015 Ohio App. LEXIS 1783 (6th Dist. May 15, 2015), appellate 

jurisdiction declined, 144 Ohio St. 3d 1426 (2015). The instant habeas corpus petition followed 

on March 6, 2017 (ECF No. 1). 

 Patton pleads the following grounds for relief: 

GROUND ONE: Violation of the Confrontation clause and 

improper hearsay in violation of the United States Constitution 

Fifth Amendment. 

Supporting Facts: The trial court erred by permitting the State to 

play a video with two alleged gang members with semi-automatic 

“assault style” rifles [SKS 47 rifle] and other gang violence not 

relevant to the case. 

GROUND TWO: The trial court erred by allowing the prosecutor 

to engage in improper impeachment of Petitioner’s alibi witness 

under Evid. R. 608(B), including an unprosecuted event while she 

was in junior high school and an allegation in a police report, 

neither of which resulted in a conviction, in violation of the United 

States Constitution. 

Supporting Facts: The trial court allowed the prosecution to 

impeach Petitioner’s alibi witness with allegation in a police report 

from high school which did not result in a conviction. 

GROUND THREE: The jury verdicts were against the manifest 

weight of the evidence. 

Supporting Facts: The jury verdicts did not support the evidence 

presented in this case. 

GROUND FOUR: The trial court erred by not granting 

Petitioner’s motion to suppress the out-of-court identification of 

Petitioner made from photo arrays, which were contrary to law and 

in violation of the due process clause of the United States 

Constitution. 
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Supporting Facts: The trial court violated Petitioner’s right to a 

fair trial by allowing out-of-court photo identifications of 

Petitioner. 

Id. at PageID 4, 6, 7, and 9. 

Analysis 

Grounds One: Confrontation Clause 

In his First Ground for Relief, Patton asserts the trial court violated his rights under the 

Confrontation Clause by permitting the prosecutor to play a video with two alleged gang 

members with semi-automatic rifles and other gang violence not relevant to the case. 

 The Warden asserts Ground One is barred by Patton’s procedural defaults in presenting 

this claim to the Ohio courts, both by making no contemporaneous objections in the trial court 

and then by failing to appeal to the Ohio Supreme Court from an adverse appellate ruling on this 

claim (Return, ECF No. 7, PageID 2609-13). 

 The procedural default doctrine in habeas corpus is described by the Supreme Court as 

follows: 

In all cases in which a state prisoner has defaulted his federal 

claims in state court pursuant to an adequate and independent state 

procedural rule, federal habeas review of the claims is barred 

unless the prisoner can demonstrate cause of the default and actual 

prejudice as a result of the alleged violation of federal law; or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional 
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rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 

433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a 

federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to 

federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation 

omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 

U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 

(1963). Coleman, 501 U.S. at 724. 

"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d 

283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, 

a claim is procedurally defaulted where state-court remedies have been exhausted within the 

meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits 

because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is 

procedurally defaulted where the petitioner failed to exhaust state court remedies, and the 

remedies are no longer available at the time the federal petition is filed because of a state 

procedural rule. Id. 

 Failure to raise a constitutional issue at all on direct appeal is subject to the cause and 

prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. at 

485; Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 

1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to 

present an issue to the state supreme court on discretionary review constitutes procedural default. 

O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted). 

 The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a 

habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 
6 

2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 

345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord 

Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 

2001). 

First the court must determine that there is a state procedural rule 

that is applicable to the petitioner's claim and that the petitioner 

failed to comply with the rule. 

 . . . . 

Second, the court must decide whether the state courts actually 

enforced the state procedural sanction, citing County Court of 

Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 

L.Ed.2d 777 (1979). 

Third, the court must decide whether the state procedural forfeiture 

is an "adequate and independent" state ground on which the state 

can rely to foreclose review of a federal constitutional claim. 

Once the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate under Sykes that 

there was "cause" for him to not follow the procedural rule and that 

he was actually prejudiced by the alleged constitutional error. 

Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting 

Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). 

 Ohio has a relevant procedural rule that requires making an objection to trial court error 

at the time it occurs. State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see 

also State v. Mason, 82 Ohio St. 3d 144, 162 (1998). The Sixth Circuit has repeatedly held this 

rule is an adequate and independent state ground for decision. Wogenstahl v. Mitchell, 668 F.3d 

307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. 

Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 

2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th
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Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 

239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 

456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); 

Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 

(6th Cir.), cert. denied, 562 U.S. 876 (2010). 

 The Sixth District Court of Appeals actually enforced this rule against Petitioner. It held: 

[*P36] Under assignment of error No 1, appellant argues that the 

trial court erred by permitting the state to play a video of two 

alleged gang members with a semi-automatic rifle at trial. 

Appellant contends that admission of the video violated his Sixth 

Amendment right to confront witnesses and that the video also 

constituted inadmissible hearsay. 

[*P37] The video is less than three minutes in length and was 

uploaded to YouTube in December 2007. It depicts two young 

men with an SKS style assault rifle with two ammunition magazine 

clips. The state used the video at trial as evidence that appellant, as 

a member of the gang Bagdad Boyz, had access to weapons of the 

type used to kill Timothy Blair and Veronica Serrano. 

[*P38] Appellant raises objections to the video on confrontation 

and hearsay grounds for the first time on appeal. Prior to trial, 

appellant objected to evidence of gang related activity in a motion 

in limine on the grounds that the evidence was irrelevant and more 

prejudicial than probative. At trial counsel renewed the objection 

on the same grounds: "Objection, Judge, based on prior objection." 

Accordingly, appellant waived all but plain error on claimed error 

challenging the admissibility of the evidence on confrontation and 

hearsay grounds. See State v. Thompson, 141 Ohio St. 3d 254, 

2014-Ohio-4751, 23 N.E.3d 1096, ¶ 174. 

[*P39] The Ohio Supreme Court has identified the standard for 

noticing plain error: 

First, there must be an error, i.e., a deviation from the 

legal rule. * * * Second, the error must be plain. To be 

"plain" within the meaning of Crim.R. 52(B), an error 

must be an "obvious" defect in the trial proceedings. * * * 

Third, the error must have affected "substantial rights." 

We have interpreted this aspect of the rule to mean that 
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the trial court's error must have affected the outcome of 

the trial. 

State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 

891, ¶ 11, quoting State v. Payne, 114 Ohio St.3d 502, 2007-Ohio4642, 873 N.E.2d 306, ¶ 16 and State v. Barnes, 94 Ohio St.3d 21, 

27, 2002 Ohio 68, 759 N.E.2d 1240 (2002). 

[*P40] Even where these three prongs are met, notice of plain error 

is taken "with the utmost caution, under exceptional circumstances 

and only to prevent a manifest miscarriage of justice." Eafford at ¶ 

12, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 

(1978), paragraph three of the syllabus 

Confrontation Clause 

[*P41] The Confrontation Clause of the Sixth Amendment to the 

United States Constitution provides: "In all criminal prosecutions, 

the accused shall enjoy the right * * * to be confronted with the 

witnesses against him." In "Crawford v. Washington, 541 U.S. 36, 

53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States 

Supreme Court held that the Confrontation Clause bars 

"testimonial statements of a witness who did not appear at trial 

unless he was unavailable to testify, and the defendant had a prior 

opportunity for cross-examination." 

[*P42] The state contends that the YouTube video was admitted 

without sound and, therefore, the court's ruling did not admit any 

testimonial statement at trial. The record discloses, however, that 

statements from the video were recited at trial. 

[*P43] At the hearing on appellant's motion to suppress the video, 

the trial court originally ordered that the video could be played at 

trial but excluded all audio, except for references to Bagdad and 

Bagdad Boyz memberships, and references to the weapon involved 

in the video. 

[*P44] At trial, the court approved a different procedure to achieve 

the same result. The state played the video portion of the 

recording, without any audio. The state was permitted to question 

Office Doug Allen of the Toledo Police Department's Gang Task 

Force concerning statements made in the video within the limited 

areas of content previously set by the court. The court permitted 

this procedure for reasons of "expediency" as a means to enforce 
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the court's limitations on use of audio from the without requiring 

technical editing of the recording. 

[*P45] Officer Doug Allen testified that prior to trial he had heard 

the audio portion of the recording. The officer testified that the two 

men in the video were doing a rap. The officer testified to the 

names of the two men in the video and identified them as gang 

members of the Bagdad Boyz gang. Officer Allen testified further 

that the individuals in the video identified themselves as "Bagdad" 

and that they were from the "North." The state also questioned the 

officer as to statements made in the video about how many of the 

particular type weapon they had: 

Q. And with respect to that particular weapon, do they 

indicate how many of these type weapons that they have? 

A. They make reference at one point in here that they 

have a few of them. 

[*P46] In our view, the fact that the state was permitted to use 

Officer Allen to voice statements made in the video, as a manner 

of convenience to avoid editing problems at trial, did not remove 

the testimonial nature of the court's ruling. The court's ruling 

permitted introduction into evidence of the out of court statements 

of the young men, voiced by Officer Allen, that the Bagdad Boyz 

gang possessed a few SKS automatic rifles at the time of the video. 

As neither of the young men testified at trial, admitting their out of 

court statements into evidence at trial denied appellant his Sixth 

Amendment to confront witnesses against him and constituted an 

obvious defect in trial proceedings. 

Hearsay

[*P47] "To constitute hearsay, two elements are needed. First, 

there must be an out-of-court statement. Second, the statement 

must be offered to prove the truth of the matter asserted. If either 

element is not present, the statement is not 'hearsay.'" State v. 

Maurer, 15 Ohio St.3d 239, 262, 15 Ohio B. 379, 473 N.E.2d 768 

(1984); see Evid.R. 801(C). The statements by the two young men 

were out of court statements and the statements were admitted to 

prove the truth of the matter asserted, namely that the Bagdad 

Boyz gang possessed a few automatic rifles of the type shown in 

the video. Accordingly, admitting the statements into evidence at 

trial was an obvious legal error, as the statements constitute 

hearsay. Evid.R. 802. 
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[*P48] We conclude, however, that these errors did not rise to the 

level of plain error, as the admission of the YouTube video did not 

affect the outcome of the trial. As more fully discussed in our 

consideration of whether the verdicts were against the manifest 

weight of the evidence, we conclude that the evidence of 

appellant's guilt at trial was overwhelming. We find assignment of 

error No. 1 not well-taken. 

State v. Patton, supra. 

 A state court plain error holding is an enforcement of a procedural default, not a waiver 

of it. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 

511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); White v. Mitchell,

431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Hinkle v. 

Randle, 271 F.3d 239 (6th Cir. 2001), citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 

2000)(plain error review does not constitute a waiver of procedural default); accord, Mason v. 

Mitchell, 320 F.3d 604 (6th Cir. 2003). 

 Thus the Sixth District enforced the contemporaneous objection rule against Patton and 

he has not shown any cause or prejudice to excuse that default. 

 Secondly, the Warden argues Ground One is procedurally defaulted because the adverse 

appellate ruling was not appealed to the Ohio Supreme Court. In order to avoid procedurally 

defaulting a habeas ground for relief, a petitioner must present it at every level of the state court 

system, including the state supreme court. O’Sullivan, supra. Patton’s sole proposition of law on 

appeal to the Ohio Supreme Court was 

Trial courts should suppress eyewitness identifications when the 

police intentionally refuse to respect the safeguards set forth in 

R.C. 2933.83. In the alternative, juries should be instructed that the 

method presented in R.C. 2933.83(A) is required, but that the 

police did not comply. R.C. 2933.83; Neil v. Biggers, 409 U.S. 

188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). 
11 

This proposition of law does not include the claim made in Ground One and that claim is 

therefore procedurally defaulted on this second basis as well as on the contemporaneous 

objection ground. 

Ground Two: Prosecutorial Misconduct 

 In his Second Ground for Relief, Patton claims he was denied a fair trial when the 

prosecutor was permitted to improperly cross-examine Patton’s alibi witness. The Warden 

asserts this Ground is also procedurally defaulted because it was not fairly presented to the Ohio 

courts as a federal constitutional claim and the adverse appellate ruling was not appealed 

(Return, ECF No. 7, PageID 2613-14). 

To preserve a federal constitutional claim for presentation in habeas corpus, the claim 

must be "fairly presented" to the state courts in a way which provides them with an opportunity 

to remedy the asserted constitutional violation, including presenting both the legal and factual 

basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 

F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds 

by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 

1991). The claim must be fairly presented at every stage of the state appellate process. Wagner 

v. Smith, 581 F.3d 410, 418 (6th Cir. 2009). 

In determining whether a petitioner "fairly presented" a federal 

constitutional claim to the state courts, we consider whether: 1) the 

petitioner phrased the federal claim in terms of the pertinent 

constitutional law or in terms sufficiently particular to allege a 

denial of the specific constitutional right in question; 2) the 

petitioner relied upon federal cases employing the constitutional 

analysis in question; 3) the petitioner relied upon state cases 
12 

employing the federal constitutional analysis in question; or 4) the 

petitioner alleged "facts well within the mainstream of [the 

pertinent] constitutional law." 

Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004), citing McMeans v. Brigano, 228 F.3d 674, 

681 (6th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971). 

 The Sixth District discussed this issue purely in terms of Ohio R. Evid. 608. It cited no 

federal case law as involved. In arguing Assignment of Error number four, Patton’s appellate 

counsel did not argue in terms of any constitutional claim (Appellant’s Briefs, SCR, ECF No. 6, 

PageID 140-46). Although she repeatedly accused the prosecutor of misconduct, it was always 

in terms of his violation of the Ohio Evidence rule. Thus no claim of unconstitutional 

prosecutorial misconduct was made to the Sixth District. 

 Even if this Court were to read the fourth assignment of error as making a constitutional 

claim, that claim was procedurally defaulted, as was the claim in Ground One, by failing to 

include it on appeal to the Ohio Supreme Court. 

Ground Three: Manifest Weight of the Evidence 

 To the extent this Ground is worded as a manifest weight claim, it is not cognizable in 

federal habeas corpus. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). 

In his “Supporting Facts” for this Ground, Patton argues the evidence does not support 

the jury verdicts. Because he is proceeding pro se, Patton is entitled to a liberal construction of 

his pleading, so this Ground could be read as claiming the evidence was insufficient. That does 

state a claim under the Constitution. Jackson v. Virginia, 443 U.S. 307 (1979). A sufficiency of 

the evidence claim was presented to the Sixth District as Assignment of Error No. 8. The Sixth 
13 

District decided that claim as follows: 

Sufficiency of the Evidence 

[*P136] Under Assignment of Error No. 8, appellant contends that 

his convictions are not supported by sufficient evidence. Appellant 

was convicted of one count of aggravated robbery, a violation of 

R.C. 2911.01(A)(1), and two counts of aggravated murder, a 

violation of R.C. 2903.01(A) and (F). Both aggravated murder 

convictions included accompanying firearm specifications under 

R.C. 2941.145, which the court merged at sentencing. 

[*P137] Sufficiency of the evidence is "'that legal standard which 

is applied to determine whether the case may go to the jury or 

whether the evidence is legally sufficient to support a jury verdict 

as a matter of law."' State v. Thompkins, 78 Ohio St.3d at 386, 678 

N.E.2d 541, quoting Black's Law Dictionary 1433 (6 Ed.1990). In 

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), the Ohio 

Supreme Court outlined the analysis required to apply this 

standard: 

An appellate court's function when reviewing the 

sufficiency of the evidence to support a criminal 

conviction is to examine the evidence admitted at trial to 

determine whether such evidence, if believed, would 

convince the average mind of the defendant's guilt beyond 

a reasonable doubt. The relevant inquiry is whether, after 

viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a 

reasonable doubt. ( Jackson v. Virginia [1979], 443 U.S. 

307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) 

Id. at paragraph two of the syllabus. 

[*P138] We consider the convictions for aggravated murder first. 

R.C. 2903.01 provides in pertinent part: 

(A) No person shall purposely, and with prior calculation 

and design, cause the death of another or the unlawful 

termination of another's pregnancy. 

* * * 

(F) Whoever violates this section is guilty of aggravated 
14 

murder, and shall be punished as provided in section 

2929.02 of the Revised Code. 

[*P139] The aggravated murder counts included R.C. 2941.145

firearm specifications. The firearm specification requires evidence 

"that the offender had a firearm on or about the offender's person 

or under the offender's control while committing the offense and 

displayed the firearm, brandished the firearm, indicated that the 

offender possessed the firearm, or used it to facilitate the offense." 

R.C. 2941.145(A). 

[*P140] Multiple witnesses testified at trial concerning the identity 

and conduct of a man dressed all in black outside on Page Street on 

the night of November 15, 2011. The evidence was that Veronica 

Serrano and her son, Timothy Blair, were shot by a firearm outside 

their residence at 1357 Page Street that night and died as a result of 

injuries from the shootings. 

[*P141] Lawrence Elliott testified he saw the shootings and 

identified appellant as the shooter at trial. Troy Minor, a neighbor 

living across the street, testified that he saw the same man in black 

argue with Veronica Serrano outside 1357 Page Street that night, 

saw the man leave when police approached, and saw him return 

later and shoot both Serrano and her son, Timothy Blair there. 

[*P142] Multiple witnesses testified that appellant went by a street 

name of "38." The evidence at trial was that Veronica Serrano 

made a dying declaration that the shooter was "38." The evidence 

at trial included a statement by Timothy Blair, an excited utterance 

made after hearing a threat to kill his brother Gary. Timothy called 

out "No, no, no, no, 38. It's my brother. It's all cool." The shootings 

followed. Jerry Hamblin, the wife of Troy Minor, testified that the 

man arguing with Veronica Serrano across the street that night 

identified himself. Hamblin testified that the man said: "I'm 38, 

mother-fucker, while he's out there with a shotgun." 

[*P143] Tonia Atwell, who lived up the street at 1331 Page, 

testified that she knew appellant, that she spoke to him, and that he 

was dressed all in black that night. Atwell also testified that 

appellant threatened to kill Veronica Serrano if she called police. 

Other witnesses at trial also testified to a threat by appellant to kill 

Serrano if she called police. 

[*P144] Viewing the evidence at trial in a light most favorable to 

the state, we conclude that it was reasonable for the trier of fact to 
15 

conclude beyond a reasonable doubt that appellant purposely, and 

with prior calculation and design, caused the deaths of Veronica 

Serrano and Timothy Blair and used a firearm to commit the 

offenses. We conclude that there was sufficient evidence at trial to 

convict appellant of two counts of aggravated murder, violations of 

R.C. 2903.01(A) and (F) and also find the accompanying firearm 

specifications under R.C. 2941.145. 

[*P145] With respect to the conviction of aggravated robbery, a 

violation of R.C. 2911.01(A)(1), the statute provides: 

2911.01 Aggravated Robbery 

(A) No person, in attempting or committing a theft 

offense, as defined in section 2913.01 of the Revised 

Code, or in fleeing immediately after the attempt or 

offense, shall do any of the following: 

(1) Have a deadly weapon on or about the offender's 

person or under the offender's control and either display 

the weapon, brandish it, indicate that the offender 

possesses it, or use it; 

[*P146] Lawrence Elliott testified that appellant took a mostly 

empty bottle of Jim Beam liquor from him at gunpoint on 

November 11, 2011. Elliott testified that appellant pointed a 

shotgun at his chest. 

[*P147] Sara King and Susanna Degler testified that they stumbled 

on the incident as Sara King dropped Susanna Degler off at home 

after work. Degler testified at trial that three men were in the street 

as they pulled up — Elliott, Gary Blair, and a man dressed all in 

black with a shotgun pointed at Elliot's chest. Sara King saw one of 

the men give a bottle of alcohol to a man dressed all in black with 

a gun in his hand. King testified that the gun looked like a shotgun 

and that the gunman put the bottle in his coat. 

[*P148] Viewing the evidence at trial in a light most favorable to 

the state, we conclude that it was reasonable for the trier of fact to 

conclude beyond a reasonable doubt that appellant in committing a 

theft offense had a deadly weapon on or about his person and 

displayed the weapon or brandished it in committing the offense. 

We conclude that there was sufficient evidence at trial to convict 

appellant of the offense of aggravated robbery, a violation of R.C. 

2911.01(A)(1). 
16 

[*P149] We find assignment of error No. 8 not well-taken. 

State v. Patton, supra. 

An allegation that a verdict was entered upon insufficient evidence states a claim under 

the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 

Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 

200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). 

In order for a conviction to be constitutionally sound, every element of the crime must be proved 

beyond a reasonable doubt. In re Winship, 397 U.S. at 364. 

[T]he relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt . . . . This familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable 

inferences from basic facts to ultimate facts. 

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United 

States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in 

Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which 

determines the elements of offenses; but once the state has adopted the elements, it must then 

prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge 

should be assessed against the elements of the crime, not against the elements set forth in an 

erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193 L. Ed. 

2d 639 (2016). 

 In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after 

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 
17 

110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required: 

In an appeal from a denial of habeas relief, in which a petitioner 

challenges the constitutional sufficiency of the evidence used to 

convict him, we are thus bound by two layers of deference to 

groups who might view facts differently than we would. First, as in 

all sufficiency-of-the-evidence challenges, we must determine 

whether, viewing the trial testimony and exhibits in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the 

evidence, re-evaluate the credibility of witnesses, or substitute our 

judgment for that of the jury. See United States v. Hilliard, 11 F.3d 

618, 620 (6th Cir. 1993). Thus, even though we might have not 

voted to convict a defendant had we participated in jury 

deliberations, we must uphold the jury verdict if any rational trier 

of fact could have found the defendant guilty after resolving all 

disputes in favor of the prosecution. Second, even were we to 

conclude that a rational trier of fact could not have found a 

petitioner guilty beyond a reasonable doubt, on habeas review, we 

must still defer to the state appellate court's sufficiency 

determination as long as it is not unreasonable. See 28 U.S.C. § 

2254(d)(2). 

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas 

corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and 

then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. 

Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 

2011)(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a 

conviction based upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 

595 F.3d 647, 656 (6th Cir. 2010). 

We have made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of 

judicial deference. First, on direct appeal, "it is the responsibility of 

the jury -- not the court -- to decide what conclusions should be 

drawn from evidence admitted at trial. A reviewing court may set 

aside the jury's verdict on the ground of insufficient evidence only 

if no rational trier of fact could have agreed with the jury." 
18 

Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 

311, 313 (2011) (per curiam). And second, on habeas review, "a 

federal court may not overturn a state court decision rejecting a 

sufficiency of the evidence challenge simply because the federal 

court disagrees with the state court. The federal court instead may 

do so only if the state court decision was 'objectively 

unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___, 

130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)). 

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker, 567 U.S. at 43 (per 

curiam). 

 Construing Ground Three as a claim of insufficient evidence, it is not well-taken. The 

Sixth District’s opinion recites evidence that is sufficient to convict Patton of all three offenses in 

question. 

 Aside from its failure on the merits, Ground Three also fails because it was not included 

in Patton’s appeal to the Ohio Supreme Court and is therefore procedurally defaulted. 

Ground Four: Improper Out-of-Court Identification 

 In his Fourth Ground for Relief, Patton asserts the trial court committed prejudicial 

constitutional error by admitting in evidence out-of-court identifications of him. Patton 

presented this claim to the Sixth District as his Sixth Assignment of Error as both a due process 

claim and a claim of violation of Ohio Revised Code § 2933.83. The court decided the claim as 

follows: 

[*P15] We consider appellant's assignments of error out of turn 

and consider assignment of error No. 6 first. In the assignment of 

error, appellant contends that the trial court erred in denying his 

motion to suppress out of court identifications made of him by 

photo arrays. Appellant contends that the ruling constituted error 

on two grounds: first that the photo identification procedure used 

did not comply with Ohio statutory requirements under R.C. 
19 

2933.83 and second, use of the out of court identifications denied 

appellant due process of law. 

[*P16] Appellate review of a trial court's ruling on a motion to 

suppress evidence presents mixed questions of law and fact. State 

v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, 

¶ 8. The Ohio Supreme Court has identified our standard of 

review: 

[A]n appellate court must accept the trial court's findings 

of fact if they are supported by competent, credible 

evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 

OBR 57, 437 N.E.2d 583. Accepting these facts as true, 

the appellate court must then independently determine, 

without deference to the conclusion of the trial court, 

whether the facts satisfy the applicable legal standard. 

State v. McNamara (1997), 124 Ohio App.3d 706, 707 N.E.2d 539. 

Id. 

Photo Identification Issues 

[*P17] The hearing on the motion to suppress proceeded on 

November 16, 2012. At the hearing, the state advised the trial court 

that it would not use evidence of the photo identification of the 

appellant by Susanne Degler at trial. Accordingly, the motion to 

suppress was limited to consideration of the admissibility photo 

identifications of appellant by Gary Blair, Lawrence Elliott and 

Anthony Blair prior to trial. 

[*P18] The state used a six-pack array to present photographs for 

identification rather than using a folder system identification 

procedure. [FN 1 A six pack array presents six photographs on one 

sheet of paper. The folder system uses individual photographs 

placed in separate folders in a procedure set forth in R.C. 

2933.83(A)(6).] Appellant argues that the folder system is the 

preferred system under R.C. 2933.83 and that the trial court erred 

in failing to suppress identifications by Gary Blair, Lawrence 

Elliott and Anthony Blair from six-pack arrays. 

[*P19] The state argues that R.C. 2933.83 does not require use of a 

folder system rather than six pack array. We agree. This court has 

held that R.C. 2933.83 does not require use of the folder system. 

State v. Winters, 6th Dist. Lucas No. L-12-1041, 2013-Ohio-2370, 

¶ 42; accord State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-

Ohio-3722, ¶ 77. Additionally, noncompliance with R.C. 2933.83
20 

alone does not provide an independent ground to suppress. State v. 

Johnson, 6th Dist. Lucas No. L-13-1032, 2014-Ohio-4339, ¶ 11, 

13; State v. Henry, 6th Dist. Lucas No. L-11-1157, 2012-Ohio5552, ¶ 46. 

[*P20] R.C. 2933.83(C)(3) directs that where evidence of a failure 

to comply with R.C. 2933.83 "is presented at trial, the jury shall be 

instructed that it may consider credible evidence of noncompliance 

in determining the reliability of any eyewitness identification 

resulting from or related to the lineup." The trial court referred to 

the folder system as the sequential presentation method of photo 

arrays in its jury instructions and instructed the jury: 

The sequential presentation method uses single photos to 

be viewed by the witness one at a time. 

The six-pack array method displays six photographs at the 

same time. The law prefers the utilization of the 

sequential method. Utilization of the six-pack method in 

and of itself is not impermissible. 

The fact that the sequential method was not utilized is a 

matter which you may properly consider when weighing 

the reliability and the weights to be given the testimony of 

any identification which was used in whole or in part 

from a photo array. 

[*P21] After the enactment of R.C. 2933.83, the overriding 

analysis on motions to suppress photo identifications remains 

whether the identification procedure was "impermissibly 

suggestive." Johnson at ¶ 13; Henry at ¶ 46; see Neil v. Biggers, 

409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). "[W]hen a 

witness has been confronted with a suspect before trial, due 

process requires a court to suppress * * * identification of the 

suspect if the confrontation was unnecessarily suggestive of the 

suspect's guilt and the identification was unreliable under all the 

circumstances." State v. Waddy, 63 Ohio St.3d 424, 438, 588 

N.E.2d 819 (1992), superseded by constitutional amendment on 

other grounds, citing Neil v. Biggers and Manson v. Brathwaite, 

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

[*P22] In Waddy, the Ohio Supreme Court identified the two-step 

analysis. "Under Neil's two-pronged test, the first question is 

whether the identification procedure was unnecessarily 

suggestive." Waddy at 438. The second "is whether, under all the 

circumstances, the identification was reliable, i.e., whether 
21 

suggestive procedures created 'a very substantial likelihood of 

irreparable misidentification." Id. at 439, citing Simmons v. United 

States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). 

The court also detailed the five Neil v. Biggers factors to consider 

in determining whether the identification was reliable: 

Key factors are the witness's opportunity to view (in the 

case of a voice identification, to hear) the defendant 

during the crime, the witness's degree of attention, the 

accuracy of the witness's prior description of the suspect, 

the witness's certainty, and the time elapsed between the 

crime and the identification. 

Neil, 409 U.S. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411. 

Waddy at 439. 

[*P23] Toledo police used three separate arrays in conducting out 

of court photo identifications in this case, lineups 22602A, 

22603B, and 22625. Lineups 22602A and 22603B both used a July 

3, 2011 photo of appellant, but with appellant's photo placed in 

different locations on the sheet. Lineup 22625 used a November 

28, 2011 photo of appellant. 

[*P24] Gary Blair and Lawrence Elliott were both presented lineup 

22602A on November 26, 2011. Neither identified a suspect. Blair 

said it could be the individual in photos 4, 5, or 6. Elliott said it 

was between 5 and 6. Appellant was depicted in photo 5. On that 

date, Anthony Blair identified appellant from a different array, 

using lineup 22603B. 

[*P25] Subsequently both Gary Blair and Elliott were presented 

with an array different from the original array. On November 28, 

2011, Lawrence Elliott identified appellant as the suspect in array 

22603B. On December 2, 2011, Gary Blair identified appellant as 

the suspect in array 22625. 

[*P26] Appellant objects to use of the 22625 array in Gary Blair's 

identification of him. He argues that persons appellant identified as 

potential suspects in the first array (22602A) were not included in 

the 22625 array. The state responds that the 22625 array depicts a 

different photograph of appellant than used in the 22602A array 

and appears with longer hair and more facial hair in his 

photograph. The state argues that use of the array was appropriate 

as photographs of other individuals where chosen to depict 

similarity to appellant's changed appearance. 
22 

[*P27] Detective Robert Schroeder prepared all three arrays. 

Detective Schroeder testified that that appellant's appearance 

changed markedly between July and November, 2011. The second 

photo array used a more current photo of appellant with longer hair 

and more facial hair. 

[*P28] Schroeder testified that he used a computer program to 

search a database of photographs to secure a block of photographs 

of men who looked similar to the photographs of appellant for the 

arrays. The computer program provided a block of 50 similar 

photographs from which Schroeder chose photographs for use with 

appellant's photograph for the arrays. 

[*P29] At the hearing on the motion to suppress, the trial court 

conducted a detailed review of the photographs used in the photo 

arrays. It concluded that the arrays included photographs of 

African-American men of similar age. The backgrounds and 

shading of the photographs were similar. The men had the same 

range of complexion, were of similar build, and had generally 

similar hairstyles and facial hair. None of the photographs depicted 

distinguishing features. All had fuller lips. The court concluded: 

"the Court makes the factual finding that here is nothing about the 

photos selected and the photos that comprise the other individuals 

that were with Mr. Patton in those photo arrays to be unduly 

suggestive." We find competent, credible evidence in the record 

supports that conclusion. 

[*P30] Appellant also argues that it was possible that Gary Blair 

and his brother may have interacted concerning the arrays either at 

the residence or at the police department prior to the photo 

identifications conducted on December 2, 2011. However there is 

no evidence to support that contention. Furthermore, Anthony 

Blair had previously identified appellant in a photo identification 

conducted on November 26, 2011. The record reflects that on 

December 2, 2011, Gary Blair proceeded first and identified 

appellant's photograph from a different array than viewed by 

Anthony on November 26. 

[*P31] Appellant argues that the trial court erred in overruling the 

motion to suppress because the photo identifications of him by 

Gary Blair and Elliott were unreliable. Appellant argues both were 

intoxicated at the time of the events on November 25, 2011, and 

both gave inconsistent statements and lied to police. Neither 

identified appellant from the first array. Appellant argues that it 

was dark out and the perpetrator wore a hoodie, obscuring his face. 
23 

[*P32] Although the crimes occurred at night, Page Street has 

street lights. Both Gary Blair and Lawrence Elliott were in close, 

direct contact with the offender. Both observed the offender in 

close proximity, threatening them with a shotgun. Blair testified 

that he was in reach of the gun and attempted to grab it. Witnesses 

testified that Elliott stood in the street as the gunman pointed the 

shotgun at his chest. Elliott testified he saw the gunman shoot the 

victims. These circumstances are of the type that would focus a 

high degree of attention of the witnesses on the gunman. 

[*P33] While neither identified appellant when first presented a 

photo array for identification, they both did at the second. The 

crime occurred on November 25, 2011 and the identifications 

occurred within a few days. Elliott identified appellant on 

November 28, 2011, with "no doubt." Gary Blair identified 

appellant on December 2, 2011. Both also made in court 

identifications of appellant. 

[*P34] Considering all the circumstances including the Neil v. 

Biggers reliability factors, we conclude that the photo 

identifications were not impermissibly suggestive and that the 

identifications were sufficiently reliable to permit admission of 

evidence of the identifications at trial consistent with due process 

of law. 

[*P35] We find assignment of error No. 6 not well-taken. 

State v. Patton, supra. 

Patton preserved this claim for merits review in habeas by presenting it as his sole 

proposition of law on appeal to the Ohio Supreme Court. This Court cannot, however, review 

the state law portion of the claim. 

 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, 
24 

693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

 The Magistrate Judge concludes the Sixth District’s decision is a reasonable application 

of the relevant Supreme Court precedent. It found that the trial court had properly considered the 

factors required by Neil v. Biggers, supra, and had made detailed findings of fact in support of its 

conclusion that the photo arrays were not unduly suggestive. Whether a pre-trial identification 

procedure is unduly suggestive is a mixed question of law and fact. Here both the trial court and 

the Sixth District applied the correct federal standard to the underlying facts as they found them 

after careful review of the evidence. Those findings are entitled to deference from this Court, 

particularly in the absence of any argument to the contrary. 

Conclusion 

 Grounds One, Two, and Three are procedurally defaulted on the bases given above. 

Ground Four is without merit because the Sixth District’s conclusion on the constitutional claim 

that is part of Ground Four is neither contrary to nor an objectively unreasonable application of 

clearly established United States Supreme Court precedent. Therefore the Magistrate Judge 

respectfully recommends that the Petition 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 
25 

be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. 

 

June 19, 2017. 

 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).