United States District Court, S.D. Ohio, Eastern Division
DELSHJUAN JONES, a.k.a. Delshaun Jones, Petitioner,
WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent.
C. SMITH, JUDGE
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
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 Traverse,
and the exhibits of the parties. For the reasons that follow,
the Magistrate Judge RECOMMENDS that this
action be DISMISSED.
Facts and Procedural History
Franklin County (Ohio) Court of Common Pleas summarized the
facts of the case as follows:
On March 8, 2014 an incident involving a stabbing occurred at
Schrock Tavern. The victim Samuel Lacy, a security guard at
the Schrock Tavern claimed that he was stabbed by a person
who he had recognized from the tavern before and knew as a
rapper. Ultimately, the police were able to get the
defendant's name. Det. Brian Wildman created a six pack
photo array that included the defendant. After he interviewed
the defendant at the hospital he had Officer Gregory Potter
serve as the blind administrator for the array. This
interview was audio taped. . . . For the identification
Officer Potter followed the procedure he was trained as the
blind administrator. Mr. Lacy identified photo number four
which was the defendant, indicating I think that's him.
Thereafter, the defendant was arrested and taken to Columbus
Police Headquarters where he was interrogated. In reviewing
the rights waiver with the defendant, he admitted to
consuming alcohol at 6:30 pm the night before and taking
Percocet, 15 mg. between 11:30 pm to 12:00 am. The waiver was
signed at 5:54 am. After the defendant had reviewed the
rights waiver with the officer he indicated he understood his
rights and signed the acknowledgment. He then talked with the
officer providing some incriminating statements.
Entry (Doc. 6-1, PAGEID ##123-124). Petitioner was
indicted by the January 10, 2014, term of the Franklin County
grand jury on one count of felonious assault in violation of
O.R.C. § 2903.11. (Id. at PAGEID #46). After
the trial court's denial of Petitioner's motions to
suppress evidence, Petitioner entered a no contest plea.
(Id. at PAGEID #150). On November 21, 2014, the
trial court imposed a sentence of seven years of
incarceration plus three years of post-release control.
(Id. at PAGEID ##170-171). Represented by new
counsel, Petitioner pursued a timely appeal. He raised the
following assignments of error:
[I.] The trial court erred when it overruled defendant's
Motion to Suppress Identification.
[II.] The trial court erred when it overruled the
defendant's Motion to Suppress Statements.
[III.] The trial court abused its discretion when it
submitted a judgment entry that did not accurately reflect
what occurred at the plea hearing.
State v. Jones, No. 14AP-1050, 2015 WL 7902800, at
*1 (Ohio App. 10th Dist. Dec. 3, 2015). On December 3, 2015,
the appellate court sustained Petitioner's third
assignment of error, as the parties agreed “that the
judgment entry signed by the trial court judge is incorrect
when it states that Delshjaun Jones was convicted following a
guilty plea” and remanded the case to the trial court
to journalize a nunc pro tunc entry reflecting that
Petitioner was found guilty following a plea of “no
contest.” Id. The appellate court otherwise
affirmed the judgment of the trial court. Id. On May
4, 2016, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. State v. Jones, 145 Ohio
St.3d 1458 (2016). On December 11, 2015, the trial court
issued the Amended Judgment Entry. (Id. at
March 6, 2017, Petitioner filed this pro se §
2254 Petition. He asserts that he was denied a fair
trial due to admission of identification testimony obtained
through the use of an unduly suggestive photo array conducted
in violation of state law (claim one); and that his
statements were admitted in violation of Miranda v.
Arizona, 384 U.S. 436, 444 (1966) (claim two).
Respondent contends that Petitioner's claims lack merit.
Standard of Review
seeks habeas relief under 28 U.S.C. § 2254. The
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) sets forth standards governing this
Court's review of state-court determinations. The United
State Supreme Court described 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 malfunction' for which federal habeas
relief is the remedy.” Burt v.
Titlow, 134 S.Ct. 10, 16 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011));
see also Renico v. Lett, 559 U.S. 766, 773 (2010)
(AEDPA imposes a highly deferential standard for evaluating
state court rulings and demands that state court decisions be
given the benefit of the doubt).
factual findings of the state appellate court are presumed to
be correct. Section 2254(e)(1) provides as follows:
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.
AEDPA, 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.) (citing Slagle
v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert.
denied sub. nom Coley v. Robinson, 134 S.Ct. 513 (2013);
28 U.S.C. § 2254(d)(1); 28 U.S.C. § 2254(d)(2) (a
petitioner must show that the state court relied on an
“unreasonable determination of the facts in light of
the evidence presented in the State court proceeding”).
The United States Court of Appeals for the Sixth Circuit
explained 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 (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.
Coley, 706 F.3d at 748-49. The burden of satisfying
the standards set forth in § 2254 rests with the
petitioner. Cullen v. Pinholster, 563 U.S.170, 181
order for a federal court to find a state court's
application of [Supreme Court precedent] unreasonable, . . .
[t]he state court's application must have been
objectively unreasonable, ” not merely “incorrect
or erroneous.” Wiggins v. Smith, 539 U.S. 510,
520-21, (2003) (internal quotation marks omitted) (citing
Lockyer v. Andrade, 538 U.S. 63, 76 (2003);
Williams, 529. U.S. at 409); see also
Harrington, 562 U.S. at 778 (“[a] state
court's determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists
could disagree' on the correctness of the state
court's decision”)(quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). In considering
claims of “unreasonable application” under §
2254(d)(1), courts must focus on the reasonableness of the
result, not on the reasonableness of the state court's
analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th
Cir. 2009) (“‘[O]ur focus on the
‘unreasonable application' test under Section
2254(d) should be on the ultimate legal conclusion that the
state court reached and not whether the state court
considered and discussed every angle of the
evidence'”) (quoting Neal v. Puckett, 286
F.3d 230, 246 (5th Cir. 2002) (en banc), cert.
denied sub. nom. Neal v. Epps, 537 U.S. 1104 (2003));
see also Nicely v. Mills, 521 Fed.Appx. 398, 403
(6th Cir. 2013) (considering evidence in the state court
record that was “not expressly considered by the state
court in its opinion” to evaluate the reasonableness of
state court's decision). Relatedly, in evaluating the
reasonableness of a state court's ultimate legal
conclusion under § 2254(d)(1), a court must review the
state court's decision based solely on the record that
was before it at the time it rendered its decision.
Pinholster, 563 U.S. at 181. Put simply,
“review under § 2254(d)(1) focuses on what a state
court knew and did.” Id. at 182.
claim one, Petitioner asserts that police failed to follow
the procedures required under state law when obtaining a
photo identification of him from the alleged victim Samuel
Lacy, resulting in an unduly suggestive identification.
According to Petitioner, Lacy's identification of him was
unreliable, as Lacy had little to no opportunity to view his
assailant at the time of the offense, paid limited attention,
provided a vague description of the perpetrator to police,
and was uncertain of his identification of Petitioner. The
state appellate court rejected this claim as follows:
The trial court . . . overruled a motion to suppress
identification and a motion to suppress statements. The
motions were overruled following an evidentiary hearing,
which revealed that someone stabbed or slashed Samuel Lacy,
seriously injuring Lacy's face. Lacy felt he knew the
identity of his assailant, a young man called
“Deli” who came into the Schrock Tavern where
Lacy worked. Columbus police officers who investigated the
assault concluded that the assailant was Delshjaun Jones and
prepared a photo array.
The  issue is whether the identification of Jones as the
assailant by Samuel Lacy should have been suppressed as
evidence. The CD of the interview of Lacy by police
detectives and of the presentation of the photo array to Lacy
for him to identify his assailant is consistent with the
trial court's overruling of the motion to suppress. Lacy
was clearly certain that he knew his assailant from the
assailant's frequent visits to the Schrock Tavern. Lacy
recognized the nickname “Deli” as applying to his
Lacy identified two photos of the six in the array as
pertinent to the investigation. The photo in the slot marked
“6” he identified as being a friend of the
assailant. The photo in the slot number “4” he
identified as being a photo of the assailant. The procedure
was not suggestive and therefore has [sic] not the basis for
suppressing the identification testimony had this been a
The first assignment of error is overruled.
State v. Jones, 2015 WL 7902800, at *1-2.
extent that Petitioner raises a claim regarding the alleged
violation of state law, his claim fails to provide a basis
for relief. Federal courts can grant habeas corpus relief
only if the petitioner is confined in violation of the United
States Constitution. 28 U.S.C. § 2254(a); e.g.,
Wilson v. Corcoran, 562 U.S. 1, 5 (2010). “[I]t is
not the province of a federal habeas court to reexamine state
court determinations on state law questions. In conducting
habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
identification testimony based upon a pre-trial procedure
that is so “impermissibly suggestive as to give rise to
a very substantial likelihood of irreparable
misidentification” violates a criminal defendant's
right to due process. Thigpen v. Cory, 804 F.2d 893,
895 (6th Cir. 1986) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). “It is the
likelihood of misidentification which violates a
defendant's right to due process.” Neil v.
Biggers, 409 U.S. 188, 198 (1972). The Court first must
determine whether the pre-trial identification procedure
employed was unduly suggestive. Ledbetter v.
Edwards, 35 F.3d 1062, 1070-71 (6th Cir. 1994),
cert. denied, 515 U.S. 1145 (1995). If so, the Court
must then consider the totality of the circumstances in order
to determine whether the identification is nevertheless
reliable. Id. at 1070 (citing Neil v.
Biggers, 409 U.S. at 199-200; United States v.
Hill, 967 F.2d 226, 230 (6th Cir.), cert.
denied, 506 U.S. 964 (1992); Thigpen, 804 F.2d
at 895). In making this determination, the Court must
consider the following five factors:
(1) the opportunity of the witness to view the criminal at
the time of the crime; (2) the witness's degree of
attention at the time of observation; (3) the accuracy of the
witness's prior description of the criminal; (4) the
level of certainty demonstrated by the witness when
confronting the ...