United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
habeas corpus case, brought pro se by Petitioner
Lavon Oden under 28 U.S.C. § 2254, is before the Court
for decision on the merits on the Petition (ECF No. 1), the
State Court Record (ECF No. 4), the Warden's Return of
Writ (ECF No. 5), and Petitioner's Reply (ECF No. 7). The
Magistrate Judge reference in this case has been transferred
to the undersigned to help balance the Magistrate Judge
workload in this District (ECF No. 8).
was indicted by a Hamilton County grand jury on charges of
aggravated murder, murder, aggravated robbery, and having
weapons while under a disability. A jury found him guilty of
all charges except the aggravated murder count and the trial
judge imposed a combined sentence of sixty-three years to
life. 2254(3) and Oden appealed with new counsel raising six
assignments of error which the Ohio First District Court of
Appeals overruled. State v. Oden, 2016 Ohio App.
LEXIS 3817 (1st Dist. Sept. 23, 2016), appellate
jurisdiction declined, 148 Ohio St.3d 1428. Oden filed
pro se an Application for Reopening under Ohio R.
App.26(B), proposing four assignments of error whose omission
he claimed demonstrated ineffective assistance of appellate
counsel. The First District denied the Application on the
merits. Oden took no appeal to the Supreme Court of Ohio, but
later sought to supplement his App. R. 26(B) Application. The
First District denied that request and Oden again did not
filed his Petition by placing it in the prison mail on June
7, 2018 (ECF No. 1, PageID 26). He pleads the following
grounds for relief:
Ground One: The Trial Court erred as a
matter of law by allowing hearsay evidence to be admitted in
violation of Appellant's right to a fair and impartial
Supporting Facts: The Sixth
Amendment's Confrontation Clause provides a criminal
defendant: the right to directly confront adverse witnesses;
the right to cross- examine adverse witnesses; and the right
to be present at any stage of the trial that would enable the
defendant to effectively cross-examine adverse witnesses.
The Confrontation Clause of the Sixth Amendment may prohibit
the admission of hearsay evidence against a criminal
defendant when the defendant lacks the opportunity to
cross-examine the out-of-court declarant. However, the
admission of out-of-court statements does not violate the
Confrontation Clause if the declarant testifies at trial and
is subject to cross-examination.
In this case the declarant, Darryl Craig, (Craig herein), did
not testify at trial.
In the First District Court of Appeals, Opinion and Journal
Entry, the court determined that much of the evidence,
including: "Craig's out-of-court identification of
Oden as the shooter[;] and the contents of Craig's text
messages[;]" was in fact "inadmissible
hearsay." Further, the court determined, "[they
could] not say, [ ... ] that the results of the trial would
have been different absent its admission, and that a reversal
is necessary to avoid manifest injustice." Usually text
messages are considered non-testimonial and are therefore not
excluded as hearsay. In this case, the text messages were
used to describe events that occurred immediately before the
marijuana sale. Further, the text messages were certainly
offer [sic] for their truth because they discussed: the
alleged robbery; shooting; and who was present. The State
requested Robert Johnson to identify the text messages
between him and Darryl Craig, these texts are found in Mr.
Craig's cell phone records that were presented as
State's Exhibit 30. Darryl Craig texts often,
and does not stop until he arrives at the car; this car is
the very car in which the robbery and subsequent murder took
place. The texts read like a journal providing all of the
details about the drug transaction that is about to take
place. Upon review of the text messages it is clear they are
testimonial in nature; because they provide Craig's
personal perspective of how the events unfolded prior to the
drug deal, robbery, and murder. See (Tr. Pg.
A violation of the Confrontation Clause is subject to
harmless error analysis[.] Harmless error exists if it is
established beyond a reasonable doubt that the violation did
not contribute to the verdict. This court has previously
determined, "habeas court should grant petition if it
has 'grave doubt' about whether trial error had
substantial and injurious effect or influence upon the
jury's verdict." It is clear the inadmissible
hearsay loaned substantial weight to the case that would not
otherwise have existed. It is also clear this bolstered
evidence influenced the jury; guiding them toward a guilty
verdict, by providing an additional witness to the crime.
This witness could not be discredited through cross
examination. The trial court claims there was
"significant admissible evidence of guilt" but does
not address how this evidence was weighed in drawing their
If we were to ignore the hearsay evidence, the remaining
evidence would be limited to: (I) the testimony of Curtis
Boston; (2) the identification by Robert Johnson; (3) the
possible location of the defendant based on cellular data;
and (4) the text message by the Appellant allegedly selling a
While uncorroborated accomplice testimony alone can support a
conviction, United States v. King, 288 Fed.Appx.
253, 256 (6th Cir. 2008), the Sixth Circuit warns that this
type of testimony should be given more caution than other
testimony when weighing its credibility. See 6th Cir.
Pattern Jury Instruction 7 .08.
First, from the record it is clear that Boston is not the
most reliable witness. Boston is a self admitted accomplice
to the crime. Boston testified he was incarcerated for this
murder charge as well as a separate aggravated robbery from
December of 2012 which did not involve the petitioner. (Tp.
Pgs. 749, 750, 751, 834). Boston sent a text message to a
friend that said he "fucked up" and needed a place
to go, this suggests guilt. In another text message to a
friend. Boston said, "Bra, if l get locked up say
Whiteshit [referring to the Petitioner, ] told you that he
robbed them [and] shot." (Tp. Pgs. 802, 818, 819).
Boston testified, he did not want to talk to the police but,
after he was arrested and talked to his father, he told the
police what happened. He admitted he did not agree to testify
until he was offered a 12 year deal. (Tp. Pgs. 824, 829, 831,
836); Boston demonstrated he had motive to implicate the
Petitioner, in this crime, when he testified about, The
Petitioner and Boston's brother being arrested in 2011;
in which, his brother pled guilty, but Petitioner beat the
case. (Tp. Pg. 842); There was also testimony from Det.
Karaguleff that several Crime
Stoppers tips came in identifying Boston as the
shooter (Tp. Pgs. I 026, I 029-1031); See also Trial Del
Ex. #3. Further, these tips indicated Boston had bragged
about the incident on Facebook. (Tp. Pg. 1032, 1034);
Trial De(Ex. #3. These tips could lead one to
believe Boston was in fact the shooter. Boston admitted to
speaking to Darryl Craig, while in lock up about the case
which helped him remember some facts. (Tp. Pgs. 846-847).
When trial counsel made an attempt to delve into the
conversation between Boston and Craig in order to discern
what was discussed; the prosecution objected and the court
sustained the objection. (Tp. Pgs. 847). The questions by
trial counselor, James Bogens, were reasonable due to
Boston's testimony; so the court sustaining the objection
was clearly an abuse of judicial discretion.
Second, Robert Johnson's identification was impermissibly
suggestive; and he was an unreliable witness as demonstrated
below. See also Ground 5.
Upon review of Mr. Johnson's testimony and pre-trial
statements; this court will find he was an unreliable
witness. Mr. Johnson testified he set up a purchase of
marijuana with Boston on January 30, 2013. (Tp. pgs.
329-330); See also States Ex. #17. Mr. Johnson
testified that on January 301h, he was driving with
Da'Shawn Wheeler, in the front passenger seat, and Darryl
Craig behind him. He picked up Boston and drove to Burton
Avenue. Mr. Johnson testified, Boston got out of the car and
went into an apartment building. It was dark at the time. Mr.
Johnson testified, he was getting very nervous since Boston
was gone a long time. (Tp. pgs. 343, 346, 347, 348, 350, 352,
356, 357). The buyer asked to see the marijuana and opened
the car door. Mr. Craig showed him the marijuana, and then
the buyer pulled out a big, black gun while Boston stood
back. Mr. Johnson admitted he told the police, on the night
of the incident, that the gun was a silver .40 caliber Glock.
(Tp. 359, 363, 365, 370; Tp. 370, 406). Mr. Johnson
testified, "They said, 'You know what time it is,
give me everything." Mr. Johnson testified he then took
off, and as he did, the buyer fired one shot through the back
window. (Tp. Pgs. 367-368, 372). Mr. Johnson admitted he
could not tell the build of the shooter, he admitted he could
not tell if the shooter had facial hair or what hand the
shooter was holding the gun with. (Tp. pgs. 407, 408, 411).
Mr. Johnson identified Appellant as the shooter, six days
after the incident, but when he spoke to the police on the
night of the incident he could not identify the shooter. Mr.
Johnson admitted he lied to the police about the marijuana
deal. He also admitted he lied when he said the shooter took
them by surprise. He admitted he did not mention that Boston
was present during either interview. (Tp. 378, 387, 389, 406,
409, 410). Mr. Johnson testified he selected Appellants photo
from lineup, and that he was 90% sure it was him. (Tp. Pgs.
390, 393, 396). Detective K.araguleff testified Mr. Johnson
told him the shooter was 5'6" or ST' tall, dark
skinned black male with a scar on his nose. (Tp. Pgs. 949, I
037). This Petitioner does not have a scar on his nose.
Most of the factors that Dr. Berry testified to, about
problems with identification, happened here. Mr. Johnson did
not know the shooter, it happened quickly, and there was a
weapon involved which put Mr. Johnson in an extreme stress
situation. This is in addition to the fact Mr. Johnson was in
the front seat so his ability to see the shooter clearly is
doubtful. Mr. Johnson could not have seen who fired the shot
either because the shot was fired after he drove off. Mr.
Johnson admitted to detectives on that night he could not
identify the shooter, but six days later he could. This is a
concern since Dr. Berry testified memory can decay after a
period of time, and six days is not an ideal length of time.
Further, on January 30thMr. Johnson told
detectives the gun involved was a silver .40 caliber Glock,
yet, trial, it was a big, black gun. As Dr. Berry testified,
memory can still change, even assuming it was properly coded
at the time. Another significant concern was the fact Mr.
Johnson never mentioned Boston's involvement to the
police during either of his police interviews.
Third, Agent Moledor opined, the Petitioner was in the
vicinity of the shooting, based upon historic cell phone
data, the fact is the Petitioner could have been anywhere
within a 21 mile radius according to the expert testimony
from Mr. Schenk. This is also assuming the signal went to the
closest tower. (Emphasis added). This is a
big assumption, considering all the factors that could
interfere and cause the signal to go elsewhere. Both
witnesses agreed the only way to pinpoint a person's
location from cellular data is through triangulation; this
technique though was not used. Even assuming Agent Moledor
was correct and the Petitioner was in the vicinity, this can
be easily explained from testimony that the Petitioner's
girlfriend lived in the apartment complex near the shooting.
This could explain why his phone was in the vicinity.
Further, if the court examined the Petitioner's cellular
data; they would find the Petitioner often spends time in the
vicinity of this cellular tower.
Fourth, Robert Lenhoff, a firearms examiner, testified the
bullet recovered was consistent with 9 mm Luger ammunition;
which could have been shot from 30-35 different brands of
firearms. Mr. Lenhoff testified there were no guns submitted
for comparison. (Tp. Pgs. 904, 919, 920, 921).
Detective Karaguleff testified the car door handle was
swabbed for DNA, a mixture of DNA from three unknown suspects
was found and the Petitioner was excluded from being a
contributor. (Tp. Pg. IO 17). This supports the
Petitioner's claim that he was not involved. If, as
testified by Johnson: the shooter opened the door; and the
Petitioner is the shooter; then the Petitioner's DNA
should have been a contributor.
We disagree with the trial courts assessment that the
remaining evidence was sufficient to support conviction,
especially if this court were to consider this issue with the
other plain errors for cumulative error.
The cumulative error value clearly demonstrates a
necessity for relief.
Ground Two: The trial court erred as a
matter of law by overruling appellant's motion for a
Supporting Facts: Pursuant to the manifest necessity
doctrine, a mistrial should not be declared unless there is a
manifest necessity for the act, or the ends of public justice
would otherwise be defeated. The Perez approach
abjures the application of any mechanical formula by which to
judge the propriety of declaring a mistrial in the varying
and often unique situations arising during the course of a
criminal trial. Instead, Perez prescribes a
case-by-case approach, taking into account all the facts and
circumstances to determine whether there was a manifest
(i.e., a high degree of) necessity for the mistrial
Although trial courts should be accorded deference in making
a determination of manifest necessity, they must employ sound
discretion and must consider the defendant's right to end
his confrontation with the state through a verdict from the
particular tribunal he faces. Sound discretion exists where
the trial judge acts responsibly and deliberately rather than
irrationally or irresponsibly.
Absent a showing of prejudice, the plain error rule
does not require reversal of a conviction where a witness may
have violated a separation order.
In this case, Petitioner made a motion for mistrial after
hearing testimony from Boston that he spoke to the witness
Darryl Craig, while in lock up. Boston testified Craig helped
him remember some facts about the case. See (Tr. Pg.
846-847.) The only fact we know Craig helped Boston remember
was regarding the theft of the earring. (Tr. Pg. 845 - 846.)
The trial court had earlier established a separation order
between Boston and Craig; that extended to their being
separated in the county jail. Boston admitted his testimony
was influenced by his conversations with Craig.
It is unclear how Boston's testimony was influenced,
because when the Petitioner's trial counsel attempted to
question Boston about what was discussed, the prosecution
objected and the trial court sustained the objection. When
the trial court sustained the objection, it was an abuse of
judicial discretion because; Boston's own testimony
demonstrated the line of questioning was necessary to
determine how Craig influenced his testimony. See
(Tr. Pg. 846-848). It is possible and likely that parts of
Boston's testimony were not from his personal account of
the events; but instead are a direct result of his
collaboration with Craig. This is a very troubling situation
because it is difficult to determine what may or may not have
been influenced expo [sic] facto.
Further, when the trial court sustained the prosecutions
objection preventing trial counsel's inquiry into this
issue; trial counsel was denied adversarial testing to
determine if and how Craig influenced Boston's testimony.
This invokes the third prong of the Cronic standard;
which "occurs when counsel is placed in circumstances in
which competent counsel very likely could not render
assistance," United States v. Cronic, 466 U.S.
648, at 659 (May 14th 1984). The court removed
counsel's ability to demonstrate any possible prejudice
to the Petitioner when they prevented the necessary
questioning to determine if any prejudicial influence
occurred to Boston's testimony. Since, counsel was
prevented from performing the necessary "adversarial
testing" to determine the possible prejudice, prejudice
must be presumed pursuant to Cronic.
Further, the court may attempt to argue that any prejudice
was removed because Craig did not testify. This is not true
because Craig's testimony was improperly introduced as
hearsay and further this would not remove Craig's
influence upon Boston's testimony. Boston's testimony
may have been in part Craig's testimony due to their
Since, the Petitioner's convictions were based solely on
the testimony of these witnesses; the violation of the
separation order was so significant that a fair trial was no
longer possible. The trial court therefore abused its
discretion by: overruling the motion; and preventing
counsel's inquiry into Craig and Boston's
This issue constitutes a plain error and is subject
to cumulative error review.
Ground Three: Appellant was denied effective
assistance of counsel in violation of his constitutional
rights thus prejudicing his right to a fair trial.
Supporting Facts: To establish
ineffective assistance of counsel, a habeas
petitioner must show that his counsel provided deficient
performance and such deficient performance prejudiced his
defense so as to render the trial unfair and the result
unreliable. Under AEDPA, a state court's ruling on
ineffective assistance of counsel claims
will only be disturbed if it is an unreasonable application
of Strickland. Focusing on the performance component, the
U.S. Supreme Court explained when a convicted defendant
complains of the ineffectiveness of counsel's assistance,
the defendant must show that counsel's representation
fell below an objective standard of reasonableness. A
reviewing court's scrutiny of counsel's performance
is highly deferential; indeed, counsel is strongly presumed
to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment. The reviewing court must also not indulge in
hindsight, but must evaluate the reasonableness of
counsel's performance within the context of the
circumstances at the time of the alleged errors.
To satisfy the prejudice prong of the Strickland test, a
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. A habeas petitioner is not
entitled to a presumption of prejudice unless it can be said
that his counsel failed meaningfully to oppose the
prosecution's case. Where one is left with pure
speculation on whether the outcome of the trial or the
penalty phase could have been any different, there is an
insufficient showing of prejudice.
(1) Counsel was Ineffective for Failing to Object to
In this case, Petitioner argues his trial counsel was
ineffective for failing to object to the hearsay statements
as set forth in Ground One, thus limiting
this Court's ability to review that plain error.
Petitioner reminds the court to take in consideration the
admitted inadmissible evidence, from the appellate
court[‘]s decision, thus citing: Craig's
out-of-court identification of Oden as the shooter; and the
contents of Craig's text messages. The appellate court
determined this evidence is inadmissible in their opinion and
journal entry. See State v. Oden. 2016 Ohio Apo.
LEXIS 3817 (Although much of this evidence was inadmissible
hearsay, we cannot say, in light of the significant,
admissible evidence of guilt, that the results of the trial
would have been different absent its admission, and that a
reversal is necessary to avoid a manifest injustice.)
It is clear from the facts that counsel's failure to
object to the evidence was unreasonable considering, the
context of the circumstances at the time of the alleged
errors. Counsel's failure to object allowed the state to
introduce a third eyewitness, to the jury, that was never
subject to cross examination.
"Similarly, if counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing,
then there has been a denial of Sixth Amendment rights that
makes the adversary process itself presumptively unreliable.
No. specific showing of prejudice was required in Davis
v. Alaska. 415 U.S. 308 (1974), because the petitioner
bad been 'denied the right of effective
cross-examination' which 'would be constitutional
error of the first magnitude and no amount of showing of want
of prejudice would cure it.' Id., at 318 (citing
Smith v. Illinois, 390 U.S. 129, 131 (1968), and
Brookhart v. Janis. 384 U.S. l, 3 (1966))."
quoting United States v. Cronic. 466 U.S. 648, at
659 (May l4th 1984).
"Circumstances of that magnitude may be present on some
occasions when although counsel is available to assist the
accused during trial, the likelihood that any lawyer, even a
fully competent one, could provide effective assistance is so
small that a presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial."
Id. at 660.
"The United States Court of Appeals for the Sixth
Circuit recently explained that, pursuant to United
States v. Cronic. 466 U.S. 648, 80 L.Ed.2d 657, 104
S.Ct. 2039 (1984), and Bell v. Cone, 535 U.S. 685,
152 L.Ed.2d 914, 122 S, Ct, 1843 (2002), three types of cases
warrant Cronic's presumption-of-prejudice
analysis rather than Strickland's two-prong test of a
deficient performance and resulting prejudice. Mitchell
v. Mason. 325 F.3d 732. 742 (6th Cir. 2003). The first
type of circumstance that warrants a presumption-of-prejudice
analysis is the complete denial of counsel at a critical
stage of the proceedings; the second is when counsel fails to
subject the prosecution's case to meaningful adversarial
testing; and the third occurs when counsel is placed in
circumstances in which competent counsel very likely could
not render assistance. Id." Meade v.
Lavigne, 265 F.Supp.2d 849.
In the case at hand, the Petitioner was denied the right to
cross-examine Darryl Craig which caused a violation of the
second and third prong of Cronic. resulting in a
'constitutional error' of the 'first
magnitude' of which no amount of showing of want of
prejudice could cure. Trial counsel was placed in
circumstances in which competent counsel very likely could
not render assistance, because he could not discredit
Craig's testimony. The denial of cross-examination caused
trial counsel to be unable to subject the prosecutions case
to adversarial testing.
If prejudice is to be presumed in a situation denying the
Petitioner to meaningful adversarial testing, as demonstrated
above, then prejudice must be presumed in this case.
As described above, pursuant to Strickland,
"[a] habeas petitioner is not entitled to a presumption
of prejudice unless it can be said that his counsel failed
meaningfully to oppose the prosecution's case." The
AEDP A standard, above, ·demonstrates an
incorporation of Cronic into the Strickland
standard; If prejudice is to be presumed then the appellate
courts application of the Strickland standard in
requiring the outcome of the trial to be different was in
error. The appellate court clearly did not review the case
taking into consideration the Cronic exceptions.
See Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052. 80 L.Ed.2d 674 (Mav, 14th 1984) and
United States v. Cronic, 466 U.S. 648, at 659 (May
The appellate court already determined, "much of this
[hearsay] evidence was inadmissible" this
"include[ed) Craig's out-of-court identification of
Oden as the shooter and the content of Craig's text
messages." State v. Oden, 2016 Ohio App. LEXIS
3817 at ¶ 4. Therefore, the first prong requiring: the
petitioner to show that the counsel's representation fell
below a reasonable standard; has already been determined and
this court can proceed directly to the "prejudice"
The Supreme Court explained that "[a] reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland at 698.
In evaluating whether a petitioner satisfies the prejudice
prong, a court must ask "whether counsel's deficient
performance renders the result of the trial unreliable or the
proceeding fundamentally unfair." Lockhart v.
Fretwell, 506 U.S. 364, 372, 122 L.Ed.2d 180, 113 S.Ct.
838 (1993) (**189) (citing Strickland. 466 U.S. at
687); see also Combs, 205 F.3d at 278 (quoting
same); Tucker, 181 F.3d at 754-55;
Chandler, 813 F.2d at 781-82; Jamison v.
Collins, 100 F.Supp.2d 647 at 723-724.
Prejudice can be demonstrated under the Strickland
standard because; the hearsay evidence that was introduced
influenced the jury in drawing the conclusion of guilt. The
identification by Darryl Craig, see State's Exhibit #11
from Trial, which bolstered Robert Johnson's
identification and provided the prosecution with a key
witness that could not be subjected to cross examination. In
a similar manner Craig's text messages were unable to be
subjected to adversarial testing because Darryl Craig did not
testify. In addition, the opportunity for testing of
Craig's testimony for credibility and reliability was
completely removed. Therefore, trial counsel's ability to
subject this testimony to adversarial testing was completely
removed In conclusion. the lack of adversarial testing of the
hearsay evidence by trial counsel rendered the trial
proceedings fundamentally unfair. When trial proceedings are
"fundamentally unfair'' prejudice has been
demonstrated pursuant to Lockhart. Cronic and
Further, if this court were to determine this issue is a
harmless error under Strickland or
Cronic, this issue amounts to a plain error
and is ...