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Herring v. Lazaroff

United States District Court, N.D. Ohio, Eastern Division

June 12, 2019

Willie S. Herring, Petitioner,
v.
Warden Alan J. Lazaroff, Respondent.

          REVISED ORDER ADOPTING REPORT AND RECOMMENDATION

          JACK ZOUHARY U.S. DISTRICT JUDGE

         Introduction

         Petitioner Willie Herring, a prisoner at Mansfield Correctional Institution, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). He is serving a sentence of 103 years to life following a 1998 conviction in Ohio state court for complicity to commit aggravated murder and other charges (Doc. 1-1 at 3). The Petition asserts six primary grounds for relief, with several sub-grounds (see Id. at 11-49).

         The Petition was referred to Magistrate Judge James Knepp for a Report and Recommendation (R&R) under Local Civil Rule 72.2. Respondent Warden Alan Lazaroff filed a Return of Writ (Doc. 6); Herring responded with a Traverse (Doc. 9). The R&R (Doc. 13) recommends denying the Petition. Herring objects (Doc. 17) and Lazaroff responds (Doc. 20).

         Background

         The R&R accurately states the factual and procedural background (Doc. 13 at 1-11), which this Court incorporates by reference and briefly summarizes. Herring objects to two portions of the R&R recitation of the factual background; that objection is overruled below.

         Herring was one of five men who robbed a Youngstown bar in 1996 (Doc. 13 at 2). The bartender -- Ronald Marinelli -- and six to eight patrons were in the bar at the time (id.). Herring entered the bar wearing a mask and carrying a gun (id.). He approached Marinelli and shot him several times at close range (id. at 3). Others in the bar were also shot, and three victims died from their injuries (id.). At trial, the jury acquitted Herring of aggravated murder but found him guilty of complicity to commit aggravated murder and other charges (id. at 4). Herring appealed and filed for post-conviction relief (id. at 5-11).

         In October 2016, Herring filed his federal habeas Petition (id. at 11). The Petition asserts the following grounds for relief (id. at 11-12):

1. Improper jury instructions on an essential element of complicity to commit aggravated murder
2. Juror misconduct
3. Ineffective assistance of trial counsel
A. Failure to object
1) Failure to object to jury instructions on purpose and causation (related to Ground 1)
2) Failure to ensure that Herring was present when the trial court communicated with the jury
3) Failure to object to instances of prosecutorial misconduct (related to Ground 4)
4) Failure to object to the trial court's use of Ohio's statutory definition of reasonable doubt (related to Ground 6)
B. Introduction of prejudicial evidence in the defense case-in-chief and failure to object to State's use of this evidence
C. Failure to retain and use an expert in eyewitness investigation
D. Failure to impeach State's witness Ronald Marinelli
E. Failure to challenge Marinelli's testimony regarding the No. of times he was shot F. Failure to challenge Marinelli's testimony regarding the statement he claims Herring made
G. Failure to challenge Marinelli's description of the man in the white mask and his identification of Herring as that man
4. Prosecutorial misconduct
A. Misconduct during closing argument
B. Failure to correct Marinelli's testimony
5. Violation of Batson v. Kentucky, 476 U.S. 79 ...

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