REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This habeas corpus case was brought by Petitioner David Walker with the assistance of counsel to obtain relief from his conviction in the Court of Common Pleas of Hamilton County, Ohio. It is ripe for decision upon the Petition (ECF No. 1), the State Court Record (ECF No. 4), the Return of Writ (ECF No. 5), and Petitioner's Traverse (ECF No. 9). The Magistrate Judge reference has recently been transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 10).

Litigation History

Walker was indicted October 3, 2012, on one count of aggravated murder with firearm specifications; two counts of murder, each with a firearm specification; one count of aggravated robbery with firearm specifications; and one count of having a weapon while under disability. (Indictment, State Court Record, ECF No. 4, Ex. 1, PageID 34-39.) After denial of his motion to suppress witness identifications, Walker tried the case to a jury which found him not guilty of aggravated murder but guilty of the remaining counts of the indictment. He was sentenced to an aggregate sentence of thirty-two years to life. Id. at PageID 62-67.

The conviction was affirmed on direct appeal. State v. Walker, 2017 Ohio App. LEXIS 1772 (Ohio App. 1st Dist. Apr. 28, 2017), appellate jurisdiction declined, 150 Ohio St.3d 1445, 2017-Ohio-7843 (Ohio Sep. 27, 2017). Petitioner then filed the instant habeas corpus Petition, pleading the following grounds for relief:

(Appendix to Petition, ECF No. 1-1, PageID 18-21.)

Analysis

Ground One: Unduly Suggestive Identification Process

In his First Ground for Relief, Walker claims the process used to identify him violated his Fifth and Fourteenth Amendment rights to due process in that it was unduly suggestive. Respondent defends Ground One on the merits, asserting this Court should defer to the decision of the First District Court of Appeals under 28 U.S.C. § 2254(d)(1). (Return, ECF No. 5, PageID 1846-56.)

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, 98 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due to state court factfinding under 28 U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

In denying Walker's First Assignment of Error, the appellate court wrote:

Walker, 2017 Ohio App. LEXIS 1772 at *1.

In his Traverse, Walker first argues that he is entitled to de novo review of this claim because the First District did not decide his federal constitutional claim on the merits, but only considered whether the identification procedure complied with Ohio Revised Code § 2933.83 and cited only its own prior decision in Neal. (Traverse, ECF No. 9, PageID 1884.)

In his Brief on appeal, Walker's First Assignment of Error was, "The trial court erred to the prejudice of Walker when it overruled his motion to suppress the pretrial identification of the appellant." (Brief, State Court Record, ECF No. 4, PageID 71.) He specified the issue to be decided as, "When a pretrial identification is not conducted in compliance with Ohio Revised Code, it is impermissibly suggestive, unreliable, and should be suppressed." Id. The text of the argument begins with making a federal due process claim and citing relevant Supreme Court authority. Id. at PageID 76, citing Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The Brief then continued to argue that the pretrial identification did not comply with Ohio Revised Code § 2933.83 or with Neil v. Biggers. (Brief, State Court Record, ECF No. 4, PageID 76-77.

A state court decision can constitute an "adjudication on the merits" entitled to deference under 28 U. S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim or to relevant federal case law. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court held:

Id. at 98. "This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decisions can be deemed to have been `adjudicated on the merits.'" Id. at 100.

Because Walker squarely presented a federal constitutional claim in his First Assignment of Error on direct appeal and the First District denied that assignment in its entirety, the Magistrate Judge concludes that the First District decided that claim on the merits and its decision is entitled to AEDPA deferential review, not de novo review.

The Supreme Court held in Neil v. Biggers, 409 U.S. 188 (1972):

409 U.S. at 199; accord, Manson v. Brathwaite, 432 U.S. 98, 114 (1977). An identification procedure violates a defendant's right to due process if it "was so unnecessarily suggestive as to run the risk of irreparable mistaken identification." Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. 2005). Even if an identification procedure was impermissibly suggestive, the identification is still admissible if it is reliable. Id. at 469, 472.

Walker argues that the First District determination of the facts is "unreasonable, as evidenced by the exhibits in the record. The appellate court determines that the photographs in the line-up share physical characteristics. In fact, not one of the other photographs match [sic] witness description of `light-skinned and chubby.'" (Traverse, ECF No. 9, PageID 1884.) However, Walker gives no record reference to those exhibits. In the Order for Answer, Magistrate Judge Litkovitz provided

(ECF No. 2, PageID 27). Petitioner has not provided any evidentiary support by record reference to his claim that the First District's decision is reversible under § 2254(d)(2).1

Walker faults the First District's decision under § 2254(D)(1) because it focused on whether the identification procedure complied with Ohio Revised Code § 2933.83. That is hardly surprising because that is the way Walker argued the issue to that Court.

Ohio Revised Code § 2933.83, enacted by the General Assembly in 2010, is a prophylactic statute intended to make eyewitness identification more reliable. It responds to widespread reform effort aimed at improving eyewitness identification which has numerous difficulties. See ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY (Harvard University Press, 1979); BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG (Harvard University Press 2011). Because Ohio Revised Code § 2933.83 is more protective of a defendant's interests in reliable identification than the case law, a fortiori compliance with the statute assures compliance with the Fifth and Fourteenth Amendments. Squarely confronted with the question, the First District determined that the police had complied with Ohio Revised Code § 2933.83.

Walker treats the issue as one this Court can decide de novo and emphasizes how much better the eyewitness identification in Biggers was than the identification here (Traverse, ECF No. 9, PageID 1885-89). But Biggers did not set a constitutional minimum. Rather it enumerated factors to be considered. In this case Petitioner claims the photo array was unduly suggestive but provides no evidence to that effect. The identification happened very shortly after the murder was committed. The witnesses had ample opportunity to view the crime and the scene was inside and apparently well lit. The relevant witnesses are seven- and ten-year-old children and they witnessed a very traumatic event: a relative with whom they lived being murdered. Petitioner apparently does not dispute that the description they gave — light-skinned and chunky — fits him; rather, he claims no similarly complected and built persons were in the array.

Ultimately, the state court decision is not an unreasonable application of Biggers and is entitled to deference. Ground One should be dismissed.

Ground Two: Violation of Confrontation Rights by Taking Testimony by Skype

In his Second Ground for Relief, Petitioner claims that taking testimony at trial by Skype violated his rights under the Confrontation Clause. Respondent asserts this claim is procedurally defaulted by failure to make a contemporaneous objection (Return, ECF No. 5, PageID 1857-66). In his Traverse Petitioner concedes that this default bar relief (Traverse, ECF No. 9, PageID 1889).

Ground Three: Violation of the Double Jeopardy Clause

In his Third Ground for Relief, Walker claims his rights under the Double Jeopardy Clause were violated by the trial court's imposition of multiple sentences for the same conduct. In particular, he complains of the failure to merge the convictions for murder and aggravated robbery in that

(Appendix to Petition, ECF No. 1-1, PageID 21.)

Respondent defends this Ground for Relief on the merits (Return, ECF No. 5, PageID 1866-67).

In his Traverse Walker broadens his claim in Ground Three. First, he says, the multiple convictions violate the Double Jeopardy Clause (ECF No. 9, PageID 1896). Second, he asserts, the Ohio courts did not correctly apply Ohio's allied offenses statute, Ohio Revised Code § 2941.25, and that that failure violates his rights under the "federal Due Process Clauses." Id. Finally he asserts this claim was fairly presented to the state courts. Id.

Walker relies heavily on State v. Johnson, 2010-Ohio-6314, 128 Ohio St.3d 153 (2010). He asserts the state court should have followed Johnson, and determined whether "both offenses can be committed by the same act, and, if so, whether the acts were sufficiently `closely related' so as to constitute `a single act committed with a single state of mind.'" (Traverse, ECF No. 9, PageID 1896, quoting Johnson at ¶ 43).

Johnson has been abrogated by the Supreme Court of Ohio in State v. Ruff, 143 Ohio St.3d 114 (2015). In Ruff the court held:

143 Ohio St. 3d at ¶¶ 12-13, 16.

In rejecting Walker's allied offenses/Double Jeopardy claim in this case, the First District held:

Walker, 2017 Ohio App. LEXIS 1772 at *5.

In his Brief on direct appeal, Walker asserted as his Fifth Assignment of Error, "[T]he trial court violated O.R.C. § 2941.25 by imposing multiple sentences on allied offenses of similar import that were not committed separately or with a separate animus."2 (Brief, State Court Record, ECF No. 4, PageID 72.) As the issue presented for review he claimed, "The Defendant's convictions for murder, aggravated robbery and weapons offenses were of the same import and were not committed separately or with the same [sic] animus." Id.

The Magistrate Judge agrees Walker fairly presented a Double Jeopardy claim to the Ohio courts and by rejecting that claim, along with the claim under Ohio Revised Code § 2941.25, the First District decided the Double Jeopardy claim on the merits. The question before this Court, then, is whether the First District's decision is an unreasonable application of clearly established Supreme Court precedent.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution affords a defendant three basic protections:

Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).

The test for whether two offenses constitute the same offense for Double Jeopardy purposes is "whether each offense contains an element not contained in the other." United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). Where two offenses are the same for Blockburger purposes, multiple punishments can be imposed if the legislature clearly intended to do so. Albernaz v. United States, 450 U.S. 333, 344 (1981); Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984); and Garrett v. United States, 471 U.S. 773, 779 (1985). In White v. Howes, 586 F.3d 1025, 1035 (6th Cir. 2009) the Sixth Circuit Court of Appeals explained that "[t]he current jurisprudence allows for multiple punishment[s] for the same offense provided the legislature has clearly indicated its intent to so provide, and recognizes no exception for necessarily included, or overlapping offenses." The Blockburger test is a rule of statutory construction, not a constitutional test in itself. Volpe v. Trim, 708 F.3d 688, 696 (6th Cir. 2013), citing Albernaz, 450 U.S. at 340. "When assessing the intent of a state legislature, a federal court is bound by a state court's construction of that state's own statutes." Volpe, 708 F.3d at 697, citing Banner v. Davis, 886 F.2d 777, 780 (6th Cir. 1989).

An Ohio court of appeals decision of a double jeopardy claim which is limited to the application of Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double jeopardy claim. Jackson (Morris) v. Smith, 745 F.3d 206, 210 (6th Cir. 2014), citing State v. Rance, 85 Ohio St.3d 632, 705 (1999), overruled by State v. Johnson, 128 Ohio St.3d 153 (2010).3

Jackson (Morris) v. Smith, 745 F.3d 206, 211 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983). Ohio Rev. Code § 2941.25, and not the Blockburger test determines whether a person has been punished twice for the same offense under Ohio law in violation of the federal Double Jeopardy Clause. Jackson (Morris), 745 F.3d at 213.

Because the First District decided in this case that Ohio Revised Code § 2941.25 did not prohibit multiple punishments for Walker's conduct and we are bound by that interpretation of the Ohio statute, Walker's Double Jeopardy claim is without merit.

If instead this Court were to consider Walker's Double Jeopardy claim de novo, it would conclude there was no violation because murder and aggravated robbery have different elements: one need not kill the victim to commit aggravated robbery; one need not intend to a theft to commit murder.

Walker argues alternatively that his Fourteenth Amendment Due Process rights were violated when the First District violated Ohio Revised Code § 2941.25. Violation by a State of its own procedural rules does not necessarily constitute a violation of the Due Process Clause. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228 (6th Cir. 1976). "A state cannot be said to have a federal due process obligation to follow all of its procedures; such a system would result in the constitutionalizing of every state rule, and would not be administrable." Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995). Because federal habeas courts are bound by state court interpretations of state law, we know in this case there was no violation of Ohio Revised Code § 2941.25 because the First District has expressly said so, concluding that the act of robbery was complete before the murder happened.4

Walker's Third Ground for Relief, considered as either a Double Jeopardy or a Due Process claim, is without merit and should be dismissed.

Ground Four: Insufficient Evidence

In his Fourth Ground for Relief, Walker asserts there was insufficient evidence to convict him because "[t]he only evidence supporting Walker's convictions are the inconsistent and incredible child identification witnesses." (Appendix to Petition, ECF No. 1, PageID 22.)

Respondent defends this claim on the merits, noting that the convictions are also supported by the dying declaration of the victim (Return, ECF No. 5, PageID 1868-71). In his Traverse, Walker "rests on the arguments state in his original petition (Traverse, ECF No. 9, PageID 1899-1900).

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 (James)5 v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (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). 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.

Jackson (James) v. Virginia, 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.

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

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 (James) v. Virginia and then to the appellate court's consideration of that verdict, as commanded by AEDPA. Parker v. Matthews, 567 U.S. 37, 43 (2012); Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc). 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).

Coleman v. Johnson, 566 U.S. 650, 651 (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam). The federal courts do not make credibility determinations in reviewing sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

The First District Court of Appeals decided Walker's sufficiency claim as follows:

Walker, 2017 Ohio App. LEXIS 1772 at *4-5. Thompkins embodies the Jackson [(James)] standard and the Magistrate Judge cannot say the First District's application of Thompson was an unreasonable application of the Jackson [(James)] standard. Post-AEDPA, a jury verdict finding eyewitnesses credible beyond a reasonable doubt is entitled to deference. Walker's Fourth Ground for Relief should be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis.