IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

COREY LYONS, 

 CASE NO. 2:18-cv-548 

 Petitioner, JUDGE JAMES L. GRAHAM 

 Magistrate Judge Chelsey M. Vascura 

 v. 

WARDEN, BELMONT 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

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

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

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

Judge RECOMMENDS that this action be DISMISSED. 

Facts and Procedural History 

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

of the case as follows: 

{¶ 2} Captain John Lemal of the Steubenville Police Department was on late 

night patrol when he witnessed a fight occurring at Club 106 and called for 

assistance. When he exited his vehicle, Lemal noted that several people were 

pushing and screaming. He advised the two groups to separate. About half of the 

group went back inside the bar; however, three to four females and Lyons began 

walking north in the parking lot of Club 106. 

{¶ 3} Lemal heard a metallic sound as something hit the gravel, at which point 

Lemal could see it was a Smith and Wesson firearm. Officer Nate Cline arrived 

on the scene and Lemal pointed out the weapon to Cline, and ordered everyone to 

immediately stop. Lyons did not stop; he began to walk faster. Lemal observed 

Lyons reach into the right side of his coat or pants prompting Lemal to draw his 

own weapon and pursue Lyons. Lyons removed a .40 Ruger and threw it near a 

vehicle parked outside the club. The Ruger was loaded and had one round in the 

chamber. Thereafter, Lyons fled and officers were unable to locate him. 
2 

{¶ 4} The grand jury indicted Lyons for having a weapon while under disability, 

tampering with evidence, carrying a concealed weapon and failure to comply with 

the order of a police officer. The matter proceeded to trial and the parties 

stipulated that Lyons was subject to a weapons disability and not permitted to 

have a weapon for any reason. 

{¶ 5} Lyons was convicted of all charges, and sentenced to three years for having 

a weapon as a convicted felon, two years for tampering with evidence, eighteen 

months for carrying a concealed weapon, all to be served consecutively. Lyons 

was sentenced to six months for his misdemeanor failure to comply conviction to 

be served concurrently with his felony sentences. 

Indoctrination 

{¶ 6} In his first of six assignments of error, Lyons asserts: 

Lyons' convictions should be reversed because the prosecutor indoctrinated the 

jury in voir dire, substantially affecting Lyons' right to a fair trial. 

*** 

{¶ 11} In his second of six assignments of error, Lyons asserts: 

The prosecutor's reason to preemptively strike the only black juror from the jury 

was race central, not race neutral under Batson, and the prosecutor's additional 

reason to exercise her preemptory strike was a pretext for unconstitutional 

discrimination. 

*** 

{¶ 18} For clarity of analysis the remaining assignments of error will be discussed 

out of order. In his fifth of six assignments of error, Lyons asserts: 

Lyons tampering with evidence should be reversed as a matter of law under 

Straley.

*** 

{¶ 23} In his third of six assignments of error, Lyons asserts: 

Lyons' convictions should be reversed because his trial counsel was deficient at 

trial, with resulting prejudice. 

*** 

{¶ 35} In his sixth of six assignments of error, Lyons asserts: 
3 

Lyons' weapons under disability, tampering with evidence, and carrying 

concealed weapon offenses should have been merged, because Lyons received 

multiple convictions for the same offense. 

*** 

{¶ 44} In his fourth of six assignments of error, Lyons asserts: 

Because of cumulative error, Lyons was denied his right to a fair trial: By the 

prosecutor's indoctrination of the jury during voir dire; the paneling of a partial 

jury; and defendant's ineffectiveness at trial. 

State v. Lyons, 93 N.E.3d 139 (Ohio Ct. App. 2017). On June 15, 2017, the appellate court 

affirmed the judgment of the trial court. Id. On January 31, 2018, the Ohio Supreme Court 

declined to accept jurisdiction of the appeal. State v. Lyons, 151 Ohio St.3d 1509 (Ohio 2018). 

 On June 5, 2018, Petitioner filed this habeas corpus Petition. He asserts as follows: 

1. The state cannot strike a black juror by using a race-central reason for its 

peremptory challenge because that is per se discriminatory under the Equal 

Protection Clause. 

2. Lyons received three punishments for offenses that are allied under R.C. 

2941.25, in violation of the Double Jeopardy Clause, and State v. Ruff, 143 Ohio 

St.3d 114[.] 

3. The state’s evidence that Lyons Tampered With Evidence was legally 

insufficient under the Due Process Clause and State v. Straley, 139 Ohio St.3d 

339[.] 

It is the position of the Respondent that Petitioner’s claims are without merit. 

Standard of Review 

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the 

Antiterrorism and Effective Death Penalty Act (“the AEDPA”) govern this case. The United 

States Supreme Court has described the AEDPA as “a formidable barrier to federal habeas relief 

for prisoners whose claims have been adjudicated in state court” and emphasized that courts 

must not “lightly conclude that a State’s criminal justice system has experienced the ‘extreme 
4 

malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 20 

(2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 

U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal 

quotation marks, citations, and footnote omitted). 

 The AEDPA limits the federal courts’ authority to issue writs of habeas corpus and 

forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated 

on the merits in State court proceedings” unless the state court decision either 

(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d). 

 Further, under the AEDPA, the factual findings of the state court are presumed to 

be correct: 

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

person in custody pursuant to the judgment of a State court, a determination of a 

factual issue made by a State court shall be presumed to be correct. The applicant 

shall have the burden of rebutting the presumption of correctness by clear and 

convincing evidence. 

28 U.S.C. § 2254(e)(1). 

 Accordingly, “a writ of habeas corpus should be denied unless the state court decision 

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

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

of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) 

(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub nom. Coley v. 
5 

Robinson, 134 S.Ct. 513 (2013). The United States Court of Appeals for the Sixth Circuit has 

summarized these standards as follows: 

A state court’s decision is “contrary to” Supreme Court precedent if (1) “the state 

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 

question of law[,] or (2) “the state court confronts facts that are materially 

indistinguishable from a relevant Supreme Court precedent and arrives” at a 

different result. Williams v. Taylor, 529 U.S. 362, 405. 120 S.Ct. 1495, 146 

L.Ed.2d 389 (2000). A state court’s decision is an “unreasonable application” 

under 28 U.S.C. 2254(d)(1) if it “identifies the correct governing legal rule from 

[the Supreme] Court’s cases but unreasonably applies it to the facts of the 

particular . . . case” or either unreasonably extends or unreasonably refuses to 

extend a legal principle from Supreme Court precedent to a new context. Id. at 

407, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389. 

Id. at 748-49. The burden of satisfying the AEDPA’s standards rests with the petitioner. See 

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

Claim One 

In claim one, Petitioner asserts that the prosecutor unconstitutionally used a peremptory 

challenge to strike the only African-American on the jury panel. The state appellate court 

rejected this claim, reasoning as follows: 

{¶ 12} The Equal Protection Clause of the United States Constitution prohibits 

purposeful discrimination in the exercise of a peremptory challenge to excuse 

*144 a juror based upon race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 

1712, 1719, 90 L.Ed.2d 69 (1986). The United States Supreme Court outlined a 

three-step process for evaluating claims that a prosecutor has used peremptory 

challenges unconstitutionally; first, the defendant must make a prima facie 

showing that the prosecutor has exercised peremptory challenges on the basis of 

race. Id. at 96–97, 106 S.Ct. 1712. Second, the burden shifts to the prosecutor to 

articulate a race-neutral explanation for striking the jurors in question. Id. at 97–

98, 106 S.Ct. 1712. Finally, the trial court must determine whether the defendant 

has carried his burden of proving purposeful discrimination. Id. at 98, 106 S.Ct. 

1712. An appellate court will not reverse the trial court's decision there was no 

discrimination unless it is clearly erroneous. See State v. Hernandez, 63 Ohio 

St.3d 577, 583, 589 N.E.2d 1310 (1992). 

{¶ 13} Lyons satisfied the first element of a prima facie case; counsel objected 

after the prospective juror—who was the only African–American—was 
6 

dismissed. Consequently, the burden shifted to the prosecutor to articulate a raceneutral explanation for striking the juror in question. The State responded: 

All right. There are a couple things. We have—the State has concerns about two 

jurors who have had family members prosecuted by prosecutors in Jefferson 

County, one is Mr. [J], the other is Mr. [R] that's in the first row. We haven't yet 

gotten to any of the preempts but it's the same concern about each of those 

potential jurors. The only one of the two of them that's the same concern about 

that both of them, only one of them is African–American. So, there was some 

additional questioning by myself and [defense counsel] about that. 

Mr. [J] lives on Spring Avenue, which is in downtown Steubenville. He is the 

only African–American on the panel and his facial expressions and his answers 

were a little bit different when I asked “Would you feel pressure to acquit him or 

would you be scared if you voted guilty in this case?” And so he's—he's 

answering one way but certainly he—he paused and he grimaced about the idea 

that it is difficult quite frankly for people that live in the downtown area or the 

hilltops, particularly when they're African–American, to vote. 

On top of that and I know there was some leading questions when [defense 

counsel] had a chance to explain to him that he would be guided by the spirit, that 

he would be in prayer during the witnesses and during the deliberations and that 

he would be meditating. 

And I think the combination of the family members with prior convictions in 

Jefferson County prosecuted by Jefferson County, the location, his reaction to 

being asked about having to either acquit or find another African–American 

guilty, combined with his reliance on the spirit and meditation during the trial and 

during the deliberations are enough for there to be a race neutral reason to excuse 

that juror. 

I will tell [defense counsel] I will likely excuse Mr. [R] for one of the same 

reasons, that it seems to be painful for him that he had a stepson who's now dead 

who's been prosecuted numerous times by people in this county. 

{¶ 14} Lyons argues that the reasons given by the prosecutor were not raceneutral. The State responds that Lyons actually brought up the issue of race first 

during voir dire. After he did, she followed up with questioning. It was at that 

time that prospective Juror J disclosed that when he gets into a serious situation 

that he lets “the spirit tell me what to do” and that “it would be the same” in terms 

of jury deliberations. 

{¶ 15} It is not a heavy burden for the State to articulate a racially-neutral reason 

for using a peremptory strike. The State gave multiple, neutral reasons for using a 

peremptory challenge against prospective Juror J: he would be guided by the spirit 

and meditating during trial and deliberations; he had a child that was prosecuted 
7 

in Jefferson County; and because his verbal answers did not match his facial 

expressions when issues of race were discussed. Finally, prospective Juror R, who 

is white, also had a family member prosecuted and was also excused by a 

peremptory strike. 

{¶ 16} The third Batson element provides the trial court must determine whether 

the defendant has carried his burden of proving purposeful discrimination. Here, 

the trial judge answered in the negative: 

And he made me nervous when he was going to have some spirit telling him what 

to do in the jury room because the spirit isn't going to testify and the spirit is not 

the law from the Court and I don't care what color the spirit is, that's not what his 

verdict should be based on and I don't know that that's a challenge for cause but 

it's certainly a basis for a peremptory challenge. 

And then if he's got all these relatives who were prosecuted by Jefferson County 

prosecutors, you know, I think that's an issue too. I think a white juror who stood 

up there and said “I'm going to have the Jury—I'm going to have some—I'm 

going to talk to some spirit and he's going to tell me what to do and—and yeah, 

all my relatives have been prosecuted by prosecutors in this county” (sic) and she 

wanted—you know, I would preempt him if I was her. 

And so I'm going to allow it... 

{¶ 17} As the reasoning offered by the State was race-neutral, the trial court did 

not err in granting the peremptory challenge. Accordingly, Lyons' second 

assignment of error is meritless. 

State v. Lyons, 93 N.E.3d at 143-45. 

As discussed by the state appellate court, once a criminal defendant establishes that the 

prosecutor has exercised a peremptory challenged based on race, the prosecution must articulate 

a “race-neutral” explanation for use of the peremptory challenge, and the trial court then 

determines whether the defendant has met his burden of establishing purposeful discrimination. 

Hernandez v. New York, 500 U.S. 352, 358 (1991). “Although the prosecutor must present a 

comprehensible reason, ‘[t]he second step of this process does not demand an explanation that is 

persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.” 

Rice v. Collins, 546 U.S. 333, 338 (2006) (citing Purkett v. Elem, 514 U.S. 765, 767-768 (1995) 
8 

(per curiam)). “[T]he ultimate burden of persuasion regarding racial motivation rests with, and 

never shifts from, the opponent of the strike.” Purkett, 513 U.S. at 768 (citation omitted). 

Moreover, this Court defers to the trial court’s evaluation of the prosecutor’s credibility in 

evaluating the race-neutral explanation for the peremptory challenge. See Russell v. Bunting, 

722 F. App’x 539, 549 (6th Cir. 2018) (citing Davis v. Ayala, -- U.S. --, 135 S.Ct. 2187, 2201 

(2015); Miller-el v. Cockrell, 537 U.S. 322, 339 (2003)). “The Supreme Court has emphasized 

that trial-court findings on the issue of discriminatory intent must be afforded ‘great deference.’ ” 

Lundy v. Turner, No. 3:16-cv-1727, 2018 WL 2338868, at *20 (N.D. Ohio Apr. 18, 2018) (citing 

Hernandez v. New York, 500 U.S. 352, 364–66 (1991)). The state court’s determination of 

whether the prosecutor intended to discriminate constitutes a “question of historical fact” that is 

presumed to be correct unless rebutted by clear and convincing evidence. Id. (citing Lancaster v.

Adams, 324 F.3d 426, 429 (6th. Cir. 2003) (citing Hernandez, 500 U.S. at 367). Further, and 

under the provision of 28 U.S.C. § 2254(d)(2), a federal habeas court can only grant relief if the 

trial court unreasonably credited the prosecutor's race-neutral explanations for the Batson

challenge. Moore v. Mitchell, 708 F.3d 760, 801 (6th Cir. 2013) (citing Rice v. Collins, 546 U.S. 

at 338). “[W]here ‘[r]easonable minds reviewing the record might disagree about the 

prosecutor's credibility, ... habeas review ... does not suffice to supersede the trial court's 

credibility determination.’ ” Braxton v. Gansheimer, 561 F.3d 453, 463 (6th Cir. 2009) (quoting 

Rice, 546 U.S. at 341–42). 

 Petitioner argues that the prosecutor violated Batson by removing Jesse James, Jr., the 

only African American from the jury, based on James’ race as an African American because the 

prosecutor indicated that he removed James because James grimaced when asked if he could 

enter a guilty verdict and improperly assumed on this basis that James could not vote impartially 
9 

due to Petitioner’s race as an African American. (Reply, ECF No. 7, PAGEID # 539-40.) 

Petitioner maintains that the Ohio Court of Appeals ignored this “race-focused” reason for the 

prosecution’s exclusion of the sole African American on the jury panel, in rejecting his claim. 

(See id.) 

 “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely 

on account of their race or on the assumption that black jurors as a group will be unable 

impartially to consider the State’s case against a black defendant.” Batson, 476 U.S. at 89. 

Here, however, the record does not reflect that the trial court unreasonably credited the 

prosecutor’s race-neutral explanations for the Batson challenge, i.e., that James had a son who 

had been murdered (Transcript, ECF No. 6-1, PAGEID # 258-60), stated that he would rely on 

the spirit during jury deliberations (PAGEID # 276-79), and grimaced when asked if he would 

feel pressured to return a not guilty verdict. “A juror's body language is a permissible basis for a 

race-neutral challenge.” Moore v. Mitchell, 708 F.3d 760, 802 (6th Cir. 2013) (citing Braxton, 

561 F.3d at 462). Petitioner has failed to establish that the appellate court based its decision on 

an unreasonable determination of the facts in light of the evidence presented or that it 

contravened or unreasonably applied federal law. 

 Claim one is without merit. 

Claim Two 

In claim two, Petitioner asserts that his convictions constitute allied offenses of similar 

import, in violation of the Double Jeopardy Clause because they arose from a single act with a 

single animus. The state appellate court rejected this claim as follows: 

{¶ 35} . . . Lyons asserts: 
10 

Lyons' weapons under disability, tampering with evidence, and 

carrying concealed weapon offenses should have been merged, 

because Lyons received multiple convictions for the same offense. 

{¶ 36} R.C. 2941.25(A) provides when the same conduct involves two or more 

allied offenses of similar import, the defendant may only be convicted of one 

offense. R.C. 2941.25(B) states when a defendant's conduct involves two or more 

dissimilar offenses, or when the conduct is similar but is committed separately or 

with a separate animus, the defendant may be convicted of all offenses. Merger is 

a sentencing question, not an additional burden of proof for the state at trial. State 

v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18. The 

Supreme Court of Ohio has consistently recognized that a defendant bears the 

burden of establishing his entitlement to merger as codified in R.C. 2941.25. Id. 

Merger of allied offenses presents a question of law this Court reviews de novo. 

State v. Burns, 7th Dist. No. 09-MA-193, 2012-Ohio-2698, 2012 WL 2237270, ¶ 

60. 

{¶ 37} The Ohio Supreme Court recently addressed the applicable standard when 

determining whether offenses merge as allied offenses of similar import. State v. 

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. 

Rather than compare the elements of two offenses to determine whether they are 

allied offenses of similar import, the analysis must focus on the defendant's 

conduct to determine whether one or more convictions may result, because an 

offense may be committed in a variety of ways and the offenses committed may 

have different import. No bright-line rule can govern every situation. 

As a practical matter, when determining whether offenses are allied offenses of 

similar import within the meaning of R.C. 2941.25, courts must ask three 

questions when the defendant's conduct supports multiple offenses: (1) Were the 

offenses dissimilar in import or significance?; (2) Were they committed 

separately?; and (3) Were they committed with separate animus or motivation? 

An affirmative answer to any of the above will permit separate convictions. The 

conduct, the animus, and the import must all be considered. 

Ruff at ¶ 30–31. 

{¶ 38} Lyons argues that his convictions for having weapons under disability, 

tampering with evidence and carrying concealed weapons charges are allied 

offenses of similar import and should merge for sentencing purposes. 
11 

{¶ 39} The Eighth District has considered merger post–Ruff involving a weapons 

under disability charge in conjunction with carrying concealed weapon. 

It is possible to commit the offenses of carrying a concealed weapon and having a 

weapon while under disability with the same conduct. R.C. 2923.12(A)(2), 

carrying concealed weapons, prohibits a person from knowingly carrying or 

having, concealed on the persons' person or concealed ready at hand, a handgun. 

R.C. 2923.13(A)(2), having weapons under disability, prohibits a person who is 

under indictment or has been convicted of any felony of violence, from 

knowingly acquiring, having, carrying, or using any firearm or dangerous 

ordnance. Accordingly, it is certainly possible to commit both carrying a 

concealed weapon and having a weapon while under disability with the same 

conduct. However, we must determine whether the two offenses were in fact 

committed with a separate animus. 

In State v. Rice, 69 Ohio St.2d 422, 433 N.E.2d 175 (1982), syllabus, the Ohio 

Supreme Court held that the crimes of carrying a concealed weapons and having 

weapons while under disability are not allied offenses of similar import and may 

be committed separately and with a separate animus. Recent courts, including this 

court, have continued to apply the Rice reasoning even after the decision in Ruff 

and Johnson where we are to look at the defendant's conduct. This court in State

v. Street, 8th Dist. Cuyahoga No. 102096, 2015-Ohio-2520, 2015 WL 3899393, 

and the Tenth District in State v. Hobbs, 10th Dist. Franklin No. 14AP-225, 2015-

Ohio-2419, 2015 WL 3822239, held that Ruff does not change the rationale or 

validity of Rice and its progeny because Ruff still prohibits merger if the offenses 

are committed with separate animus. Hobbs at ¶ 35, citing Ruff at ¶ 31; Street at ¶ 

15. 

State v. Carradine, 2015-Ohio-3670, 38 N.E.3d 936 (8th Dist.), ¶ 56–57. 

{¶ 40} Lyons, who was under a weapons disability, acquired a firearm. 

Afterwards, but before encountering Lemal at Club 106, Lyons made the decision 

to conceal the firearm. When Lemal saw a weapon on the ground near Lyons, 

Lemal ordered Lyons not to move, but Lyons fled the scene. While Lemal was in 

pursuit he watched as Lyons removed the firearm from his waistband and threw it 

to the ground. Lyons' conduct of acquiring the firearm and concealing it in his 

waistband resulted in two different offenses that were committed separately and 

with a separate animus. It is the defendant's burden to establish his right to 

merger. Accordingly, the trial court did not err in failing to merge the weapons 

under disability and carrying concealed weapon charges. 

{¶ 41} Lyons next argues that his tampering with evidence conviction should 

merge with one of the weapons convictions. He was convicted of tampering with 

evidence, which required proof that he knew an official proceeding or 

investigation was in progress and that he attempted to conceal a thing with the 

purpose to impair its availability as evidence in such proceeding or investigation. 
12 

R.C. 2921.12(A)(1). Lyons was also convicted of having a weapon under 

disability as a result of acquiring and possessing a firearm, R.C. 2923.13(A)(3), 

and carrying a concealed weapon which required proof that he knowingly carried 

or concealed on his person a deadly weapon or dangerous ordnance. R.C. 

2923.12(A)(2). 

{¶ 42} These offenses are distinct and were committed with a separate animus or 

motivation. First, Lyons acquired and possessed a firearm at some time prior to 

the fight at the club. Second, Lyons then concealed the firearm when he placed it 

in his waistband. Finally, he discarded the firearm while being chased by police; 

specifically, to conceal the firearm with the purpose to impair its availability as 

evidence. A review of the elements that constitute the charges of tampering with 

evidence, having a weapon under disability and carrying a concealed weapon 

demonstrate not only that the offenses are not aligned, but the crimes are so 

dissimilar that the commission of one in no way automatically results in the 

commission of the other. 

{¶ 43} Accordingly, the trial court did not err in failing to merge these offenses 

and Lyons sixth assignment of error is meritless. 

State v. Lyons, 93 N.E.3d at 148-49. 

 Petitioner argues that the state appellate court improperly applied an “elemental analysis” 

in rejecting his claim, that he committed only one act, and that Ohio’s legislature did not intend 

cumulative punishments under these circumstances. (Reply, ECF No. 7, PAGEID # 542-44.) 

The Court is not so persuaded. The appellate court based its decision on the test referred to by 

Petitioner and set forth by the Ohio Supreme Court in Ruff, 143 Ohio St.3d at 114, concluding 

that Petitioner had committed three distinct acts that involved separate animus or motivation. 

Further, this conclusion does not constitute an unreasonable determination of the facts in light of 

the evidence that was presented. 

 Claim two therefore lacks merit. 

Claim Three 

In claim three, Petitioner asserts that the evidence is constitutionally insufficient to 

sustain his conviction on tampering with evidence, as no evidence indicated that he knew police 
13 

were investigating his possession of a firearm or suspected he was in possession of the firearm at 

when he threw it to the ground. The state appellate court rejected this claim as follows: 

Lyons asserts: 

Lyons tampering with evidence should be reversed as a matter of 

law under Straley. 

{¶ 19} A sufficiency challenge measures whether there is sufficient evidence to 

send the case to the jury or support a verdict as a matter of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In essence, 

sufficiency is a test of adequacy and whether the state met its burden of 

production. State v. Fullerman, 7th Dist. No. 99 CA 0314, 2001 WL 1700425, *4. 

Whether the evidence is legally sufficient is a question of law. State v. Robinson, 

162 Ohio St. 486, 124 N.E.2d 148 (1955). On appeal, the issue is whether the trier 

of fact could find the essential elements of the offense were proven beyond a 

reasonable doubt after construing the evidence in a light most favorable to the 

state. State v. May, 2011-Ohio-6637, 970 N.E.2d 1029, ¶ 58 (7th Dist.). 

{¶ 20} Tampering with evidence is defined as “No person, knowing that an 

official proceeding or investigation is in progress, or is about to be or likely to be 

instituted, shall do any of the following: (1) Alter, destroy, conceal, or remove 

any record, document, or thing, with purpose to impair its value or availability as 

evidence in such proceeding or investigation [.]” R.C. 2921.12(A)(1). 

{¶ 21} Lyons relies on State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 

N.E.3d 1175. Straley was stopped for an alcohol related offense, but the police 

opted not to charge her. While making arrangements to get her a ride home, 

Straley ran 20 to 30 feet away to urinate, and officers discovered a cellophane 

baggie containing crack cocaine where Straley had urinated after she had walked 

away. She was convicted of tampering with evidence and the Second District 

reversed. The Ohio Supreme Court accepted the following certified conflict: 

“[w]hether a tampering conviction requires proof that the defendant impaired 

evidence in an investigation by tampering with evidence related to the 

investigation.” Id. at ¶ 8. The Court answered in the affirmative, concluding: 

There is nothing in the record to suggest that the officers were 

conducting or likely to conduct an investigation into trafficking or 

possession of cocaine when Straley discarded the baggie. The 

baggie of cocaine did not relate to either an ongoing investigation 

of driving while under the influence of alcohol or driving without a 

license and had no evidentiary value to a likely investigation of 

public urination, and thus the record does not support a conviction 

for tampering with evidence. 
14 

Id. at ¶ 19. 

{¶ 22} Conversely, in this case Officer Lemal arrived on the scene, witnessed the 

remnants of a fight, heard a firearm drop, and saw it on the ground near Lyons 

and others. He ordered no one to move and Lyons fled. As a convicted felon 

Lyons was under a prohibition from owning or possessing a firearm. When Lyons 

fled from Lemal, the officer saw him discard a firearm. When Lyons fled the 

scene and discarded the firearm he was trying to avoid a weapons under disability 

charge. This was a continuing series of events and an ongoing investigation of the 

scene. Lyons discarding the firearm impaired its potential to be used as evidence. 

As there is sufficient evidence to support Lyons conviction for tampering with 

evidence, this assignment of error is meritless. 

State v. Lyons, 93 N.E.3d at 145-46. 

 In determining whether the evidence was sufficient to support a petitioner’s conviction, a 

federal habeas court must view the evidence in the light most favorable to the prosecution. 

Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). 

The prosecution is not affirmatively required to “rule out every hypothesis except that of guilt.” 

Id. (quoting Jackson, 443 U.S. at 326). Instead, “a reviewing court ‘faced with a record of 

historical facts that supports conflicting inferences must presume—even if it does not 

affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of 

the prosecution, and must defer to that resolution.’” Id. at 296–97 (quoting Jackson, 443 U.S. at 

326). 

Moreover, federal habeas courts must afford a “double layer” of deference to state court 

determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, deference 

must be given, first, to the jury’s finding of guilt because the standard, announced in Jackson v.

Virginia, is 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.” 567 F.3d 191, 205 (6th Cir. 2009). Second, and even if a de novo

review of the evidence leads to the conclusion that no rational trier of fact could have so found, a 
15 

federal habeas court “must still defer to the state appellate court’s sufficiency determination as 

long as it is not unreasonable.” Id.; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). 

This is a substantial hurdle for a habeas petitioner to overcome, and Petitioner has not done so 

here. 

This Court reviews that decision under an extremely doubly deferential lens of both 

Jackson v. Virginia and the AEDPA. Notably, Petitioner “faces a nearly insurmountable 

hurdle.” Davis v. Lafler, 658 F.3d 525, 534 (6th Cir. 2011) (citation omitted). “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.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). Further, 

and “[b]ecause rational people can sometimes disagree, the inevitable consequence of this settled 

law is that judges will sometimes encounter convictions that they believe to be mistaken, but that 

they must nonetheless uphold.” Id. Additionally, “a federal habeas court may overturn a state 

court’s rejection of an insufficient-evidence claim only if the state court’s decision was 

objectively unreasonable under § 2254(d).” Danielak v. Brewer, -- F. App’x --, 2018 WL 

4049076, at *1 (6th Cir. Aug. 24, 2018) (citing Coleman v. Johnson, 566 U.S. 650, 651 (2012)). 

The precise definition of “objectively unreasonable” remains elusive. Maynard v.

Boone, 468 F.3d 665, 670–71 (10th Cir. 2006) (discussing the failure of most 

federal courts to further define the phrase “objectively unreasonable” and 

collecting cases). Several of our sister circuits, however, have attempted to clarify 

the term. The First Circuit has explained that “if it is a close question whether the 

state decision is in error, then the state decision cannot be an unreasonable 

application,” and that “‘some increment of incorrectness beyond error is 

required.’” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) 

(quoting with approval Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). 

Taking a somewhat different tack, the Seventh Circuit has explained that a state 

court's decision is sustainable under AEDPA if it “is at least minimally consistent 

with the facts and circumstances of the case,” Hennon v. Cooper, 109 F.3d 330, 

335 (7th Cir. 1997), or even “if it is one of several equally plausible outcomes,” 

Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997), and that a decision is 

objectively unreasonable only where it is “well outside the boundaries of 
16 

permissible differences of opinion,” Hardaway v. Young, 302 F.3d 757, 762 (7th 

Cir. 2002); see also Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir. 2000) 

(explaining that a state court's decision is not unreasonable if it took the 

controlling standard “seriously and produce[d] an answer within the range of 

defensible positions”). The Tenth Circuit has similarly opined that “[i]t is not 

enough that the decision is clearly wrong or that the reviewing court would have 

reached a contrary decision,” but instead “the state court decision must be at such 

tension with governing U.S. Supreme Court precedents, or so inadequately 

supported by the record, or so arbitrary as to be unreasonable.” Maynard, 468 

F.3d at 671 (internal quotation marks omitted). 

This court has not delved deeply into the issue, but one judge has indicated that 

where a state court makes “a close call” on a constitutional question, this 

“militates against the conclusion that the state court's application of the relevant 

Supreme Court precedent was objectively unreasonable.” Lopez v. Wilson, 426 

F.3d 339, 358 n. 1 (6th Cir. 2005) (en banc) (Cole, J., concurring) (internal 

quotation marks omitted). Moreover, the Supreme Court has recently explained 

that “[w]hen assessing whether a state court's application of federal law is 

unreasonable, ‘the range of reasonable judgment can depend in part on the nature 

of the relevant rule’ that the state court must apply.” Renico v. Lett, ––– U.S. ––––

, 130 S.Ct. 1855, 1864, 176 L.Ed.2d 678 (2010) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). 

Davis v. Lafler, 658 F.3d at 534-35. 

Here, Petitioner argues that the state appellate court unreasonably applied federal law 

because no evidence indicated that the firearm he threw to the ground was related to or had any 

value to the ongoing investigation being conducted by police at that time, as required under 

Straley. (Reply, ECF No. 7, PAGEID # 545.) However, the appellate court has rejected this 

argument. This Court is bound by that determination here. “[I]t is not the province of a federal 

habeas court to reexamine state-court determinations on state-law questions.” Estelle v. 

McGuire, 502 U.S. 62, 67 (1991). Moreover, “a state court’s interpretation of state law, 

including one announced on direct appeal of the challenged conviction, binds a federal court 

sitting in habeas corpus.” Dukles v. Chuvalas, No. 1:15-cv-21642017 WL 3447830, at *7 (N.D. 

Ohio July 5, 2017) (citing Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (internal citation 
17 

omitted)); see also Thomas v. Stephenson, 898 F.3d 693, 700-01 (6th Cir. 2018) (deferring to the 

state court’s interpretation of requirements of state law on sufficiency of evidence claim). 

Thus, Claim three is also without merit. 

Recommended Disposition 

For all of the foregoing reasons, it is RECOMMENDED that this action be 

DISMISSED. 

Procedure on Objections 

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

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

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

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

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

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

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

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

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

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

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

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

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 
18 

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

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

appealability should issue. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE