United States District Court, N.D. Ohio, Eastern Division
Willie S. Herring, Petitioner,
Warden Alan J. Lazaroff, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
ZOUHARY U.S. DISTRICT JUDGE
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).
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).
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.
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).
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
C. Failure to retain and use an expert in eyewitness
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
Misconduct during closing argument
Failure to correct ...