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. 

OPINION AND ORDER 

 On October 12, 2018, the Magistrate Judge issued a Report and Recommendation

recommending that the Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be 

dismissed. (ECF No. 8.) Petitioner has filed an Objection to the Magistrate Judge’s Report and

Recommendation. (ECF No. 9.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de

novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 9) is OVERRULED. 

The Report and Recommendation (ECF No. 8) is ADOPTED and AFFIRMED. This action is 

hereby DISMISSED. 

 The Court GRANTS a certificate of appealability, in part. 

 Petitioner challenges his March 2016 convictions after a jury trial in the Jefferson County 

Court of Common Pleas on having a weapon while under disability, tampering with evidence, 

carrying a concealed weapon, and failure to comply with an order or signal of a police officer. 

He asserts that he was denied a fair trial because the prosecutor unconstitutionally used a 

peremptory challenge to strike the sole African-American from the jury panel (claim one); that 

his convictions violate the Double Jeopardy Clause (claim two); and that the evidence is 

constitutionally insufficient to sustain his conviction on tampering with evidence (claim three). 
2 

The Magistrate Judge recommended dismissal of all of these claims on the merits. Petitioner 

objects to those recommendations. 

 Petitioner objects to the recommendation of dismissal of his claim under Batson v.

Kentucky, 476 U.S. 79 (1986). He again argues that the prosecutor improperly removed the sole 

potential African-American from the jury when she stated that she believed that he would be 

partial to the defendant—or reluctant to find him guilty—based on their shared race. Petitioner 

maintains that it does not matter if the prosecutor provided other race-neutral explanations for 

her removal of the juror, in view of her race-based explanation. He argues that the Court of 

Appeals ignored the prosecutor’s stated bias, thereby unreasonably applying federal law of the 

United States Supreme Court. In other words, according to the Petitioner, Batson requires the 

prosecutor to offer solely race-neutral explanations for exercising a race-based peremptory 

challenge, and the prosecutor failed to do so here.1

 

 

1

 The prosecutor stated as follows: 

[T]he State has concerns about two jurors who have had family members prosecuted by 

prosecutors in Jefferson County, one is Mr. James. . . only one of them is African-American . . . . 

Mr. James lives on spring Avenue, which is in downtown Steubenville. He is the only AfricanAmerican 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 Mr. Miller 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. 

(Transcript, ECF No. 6-1, PAGEID # 286-87) (emphasis added). 
3 

 The Sixth Circuit has rejected this same argument that Batson and its progeny require a 

“per se” approach, under which any improper discriminatory motivation violates Batson. Akins 

v. Easterling, 648 F.3d 380, 389-92 (6th Cir. 2011), Id. at 389 (citing Kesser v. Cambra, 465 

F.3d 351, 372 (9th Cir. 2006) (“[W]here both race-based and race-neutral reasons have 

motivated a challenged decision . . . the Court allows those accused of unlawful discrimination to 

prevail, despite clear evidence of racially discriminatory motivation, if they can show that the 

challenged decision would have been made even absent the impermissible motivation, or, put 

another way, that the discriminatory motivation was not a “but for” cause of the challenged 

decision.”) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); 

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 n.21 (1977)). In so 

doing, the Sixth Circuit noted that the Supreme Court in Snyder v. Louisiana, 552 U.S. 472, 485 

(2008), suggested “that proving discriminatory intent does not require showing that race was the 

sole motivation for the peremptory strike.” Akins, 648 F.3d at 390. The Supreme Court stated: 

In other circumstances, we have held that, once it is shown that a discriminatory 

intent was a substantial or motivating factor in an action taken by a state actor, the 

burden shifts to the party defending the action to show that this factor was not 

determinative. See Hunter v. Underwood, 471 U.S. 222, 228, 105 S.Ct. 1916, 85 

L.Ed.2d 222 (1985). We have not previously applied this rule in a Batson case, 

and we need not decide here whether that standard governs in this context. For 

present purposes, it is enough to recognize that a peremptory strike shown to have 

been motivated in substantial part by discriminatory intent could not be sustained 

based on any lesser showing by the prosecution. 

Snyder, 552 U.S. at 485.2

 

 

2

 The Supreme Court declined to address the issue in Foster v. Chatman, -- U.S. --, --, 136 S.Ct. 1737, 1754 n.6 

(2016), stating: 

 

In Snyder, we noted that we had not previously allowed the prosecution to show that “a 

discriminatory intent [that] was a substantial or motivating factor” behind a strike was 

nevertheless not “determinative” to the prosecution's decision to exercise the strike. 552 U.S., at 

485, 128 S.Ct. 1203. The State does not raise such an argument here and so, as in Snyder, we need 

not decide the availability of such a defense. 

Id. 
4 

The Akins court concluded that the state court’s application of a “sole-motivation standard, rather 

than a per se approach or mixed-motive standard” did not violate 28 U.S.C. § 2254(d). Id. at 

392. 

Most damaging to Akins's claim . . . the Supreme Court used the word “solely” in 

the Batson decision itself: “the Equal Protection Clause forbids the prosecutor to 

challenge potential jurors solely on account of their race.” Batson, 476 U.S. at 89, 

106 S.Ct. 1712 (emphasis added). The Supreme Court has repeated the “solely” 

phrasing from Batson in subsequent decisions. See United States v. Martinez–

Salazar, 528 U.S. 304, 315, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (“Under the 

Equal Protection Clause, a defendant may not exercise a peremptory challenge to 

remove a potential juror solely on the basis of the juror's gender, ethnic origin, or 

race.” (emphasis added)); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 

S.Ct. 1419, 128 L.Ed.2d 89 (1994) (“When persons are excluded from 

participation in our democratic processes solely because of race or gender, this 

promise of equality dims, and the integrity of our judicial system is jeopardized.” 

(emphasis added)); Powers, 499 U.S. at 409, 111 S.Ct. 1364 (“We hold that the 

Equal Protection Clause prohibits a prosecutor from using the State's peremptory 

challenges to exclude otherwise qualified and unbiased persons from the petit jury 

solely by reason of their race....” (emphasis added)). Lower federal courts also 

continue, even after Snyder, to include the “solely” phrasing in their decisions. 

See, e.g., United States v. Taylor, 636 F.3d 901, 904 (7th Cir. 2011); United States 

v. Lewis, 593 F.3d 765, 770 (8th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 

3375, 176 L.Ed.2d 1260 (2010). The Supreme Court in Batson and its progeny, 

and the lower federal courts in applying Batson, may not have intended the 

inclusion of “solely” to preclude dual-motivation analysis in appropriate cases, 

see Howard v. Senkowski, 986 F.2d 24, 28–30 (2d Cir. 1993), but it nonetheless 

informs our analysis of the reasonableness of the state court's decision. 

Id. 

The Court is not persuaded that the record indicates that the state court unreasonably 

applied Batson. “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 in Jefferson County; and because his verbal 

answers did not match his facial expressions when issues of race were discussed.” State v. 

Lyons, 93 N.E.3d at 145. Additionally, “prospective Juror R, who is white, also had a family 
5 

member prosecuted and was also excused by a peremptory strike.” Id. Moreover, the trial 

court’s determination that Petitioner failed to establish discriminatory intent is entitled to 

extreme deference in these proceedings: 

[T]he trial court must evaluate not only whether the prosecutor's 

demeanor belies a discriminatory intent, but also whether the 

juror's demeanor can credibly be said to have exhibited the basis 

for the strike attributed to the juror by the prosecutor. We have 

recognized that these determinations of credibility and demeanor 

lie peculiarly within a trial judge's province. 

Snyder, 552 U.S. at 477, 128 S.Ct. 1203 (internal quotation marks omitted); see 

Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015) 

(“[A] trial court finding regarding the credibility of an attorney's explanation of 

the ground for a peremptory challenge is entitled to great deference.” (internal 

quotation marks omitted)); Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 

1859, 114 L.Ed.2d 395 (1991) (“Deference to trial court findings on the issue of 

discriminatory intent makes particular sense in this context because, as we noted 

in Batson, the finding ‘largely will turn on evaluation of credibility.’” (quoting 

Batson, 476 U.S. at 98 n.21, 106 S.Ct. 1712)). 

Washington v. Roberts, 846 F.3d 1283, 1294 (10th Cir. 2017). Thus, “in the absence of 

exceptional circumstances” this Court defers to that factual determinations, unless it is “clearly 

erroneous.” Foster, 136 S.Ct. at 1747 (citing Snyder, 552 U.S. at 477). Upon review of the 

record, and applying this deferential standard of review, the Court concludes that Petitioner has 

failed to establish that relief is warranted. 

Petitioner also objects to the Magistrate Judge’s recommendation of dismissal of claims 

two and three. He again argues that the Court of Appeals applied the wrong test in determining 

whether his convictions violated Ohio’s law on allied offenses of similar import, thereby 

violating the Double Jeopardy Clause, and claims that the appellate court misapplied state law in 

its dismissal of his claim of insufficiency of the evidence. For the reasons already well detailed 

in the Magistrate Judge’s Report and Recommendation, these arguments are not well taken. 
6 

 Petitioner’s Objection (ECF No. 9) is OVERRULED. The Report and Recommendation

(ECF No. 8) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States 

District Courts, the Court now considers whether to issue a certificate of appealability. “In 

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal 

court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v. 

Fisher, –––U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a 

habeas petitioner to obtain a certificate of appealability in order to appeal). 

When a claim has been denied on the merits, a certificate of appealability may issue only 

if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a 

petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues presented were 

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has been 

denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes 

that jurists of reason would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling. Id. 

The Court is not persuaded that Petitioner has met this burden on claims two and three, 

but concludes that reasonable jurists could debate whether claim one states a valid claim of the 

denial of a constitutional right and therefore GRANTS the certificate of appealability, in part, 

and certifies the following issue for appeal: 
7 

Is Petitioner entitled to relief under Batson? 

The Clerk is DIRECTED to enter final JUDGMENT. 

IT IS SO ORDERED. 

 _S/ James L. Graham. ______ 

 JAMES L. GRAHAM 

 United States District Judge 

Date: November 6, 2018