NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1187n.06
No. 11-4036
FILED
Nov 20, 2012
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JAMES M. CONLEY, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
WARDEN CHILLICOTHE CORRECTIONAL )
INSTITUTION, )
)
Respondent-Appellee. )
)
BEFORE: GILMAN, GIBBONS, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge.
Petitioner James M. Conley seeks habeas relief from his conviction in Ohio state court for
aggravated burglary. Conley challenges a witness’s in-court identification of him and contends that
his prosecutorial-misconduct claims are not procedurally defaulted. The Ohio Court of Appeals
concluded that the witness’s in-court identification was reliable, and held that because Conley did
not object to the alleged misconduct at trial, he waived all but plain error review. Because Conley
has failed to establish that the pretrial procedure was unduly suggestive and that the witness’s
identification was not reliable, his challenge to the identification is without merit. Conley has also
failed to establish that his prosecutorial-misconduct claims are not procedurally defaulted, and
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cannot show cause and prejudice to excuse the default, or that the failure to consider these claims
would produce a miscarriage of justice.
This case arises out of a late-night home invasion. Tom and Sandra Cooper were awakened
by their barking dog in the early hours of December 19, 2007, and discovered an intruder in their
bathroom. Although they tried to trap the intruder and summon the police, he fought his way out and
attempted to flee. Sandra Cooper grabbed hold of the intruder and hit him repeatedly on the head
and shoulders with a flashlight before the intruder eventually ran from the house. The police were
unable to apprehend the suspect. The next day, Mr. Cooper identified Conley from a photo lineup;
Mrs. Cooper did not identify anyone from that lineup, telling investigators that she had only been
able to see the suspect in profile during the incident. Conley, who had previously worked for Mr.
Cooper, was arrested and charged with aggravated burglary.
At trial, both Mr. and Mrs. Cooper identified Conley as the burglar. Although Mrs. Cooper
did not identify Conley at the initial photo lineup, she saw and recognized him at a pretrial hearing.
She testified at trial that she had looked into a courtroom and observed Conley standing among a
group of twenty people; upon seeing his face in profile, she immediately recognized him as the
intruder. The jury found Conley guilty, and the trial court sentenced him to seven years in prison.1
Conley appealed to the Ohio Court of Appeals, raising seven assignments of error. Among
other things, he challenged the identifications of Mr. and Mrs. Cooper, alleged prosecutorial
1
The preceding facts are summarized in the Ohio Court of Appeals’s decision, State v. Conley, No.
08CA784, 2009 Ohio 1848, ¶3-¶5 (Ohio Ct. App. Apr. 13, 2009).
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misconduct, and claimed that he had received ineffective assistance of trial counsel—though not for
his trial counsel’s failure to object to the alleged prosecutorial misconduct. The court rejected all
of Conley’s arguments and affirmed the judgment.
On the identification issue, the Ohio Court of Appeals noted that Conley was not challenging
the photo lineup as unduly suggestive. State v. Conley, 2009 Ohio 1848, ¶8 (Ohio Ct. App. Apr. 13,
2009). The court declined to second-guess the jury’s determination as to the credibility of the
identifications, noting that where a pretrial identification procedure is not unduly suggestive,
reliability goes to the weight of the evidence, not its admissibility. Id. at ¶9. The court rejected
Conley’s argument that the identification was unreliable as a matter of law. On the prosecutorial
misconduct issue, the court held that because Conley did not raise any objection at trial, he waived
all but plain error, which the court did not find. Id. at ¶27. The court stated “[a]dditionally” that it
was not persuaded that the prosecutor’s comments constituted misconduct, because the prosecutor
did not improperly vouch for the credibility of the identifying witnesses—Mr. and Mrs. Cooper—and
did not suggest that Conley was a “liar” in his closing argument. Id. at ¶29-30.
Conley petitioned for a writ of habeas corpus in the district court. The magistrate judge
recommended denying the petition because Conley’s prosecutorial-misconduct claim was
procedurally defaulted; the state court’s plain-error review of the claim did not constitute a waiver
of the state’s procedural-default rule, but rather functioned as an enforcement of that rule. R. 19 at
12, PgID # 683. The state court’s alternative ruling on the merits did not “forgive” Conley’s waiver
for purposes of his habeas petition. R. 19 at 13, PgID # 684. Although Conley raised an ineffective-
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assistance-of-trial-counsel claim to excuse the default, the magistrate judge found that Conley failed
to present his argument—that his trial counsel failed to object to the prosecutor’s misconduct—to
the state court. Conley was also barred from claiming ineffective assistance of appellate counsel as
grounds to excuse his default on the ineffective-assistance-of-trial-counsel claim because he never
attempted to file an Ohio Rule 26(B) application. R. 19 at 14, PgID # 685.
On the identification issue, the magistrate judge commented, “Arguably, because the state
appellate court failed to address the federal constitutional nature of Petitioner’s claim, this Court
must conduct a less deferential standard of review.” R. 19 at 17, PgID # 688. Nevertheless, the
magistrate judge determined that the pretrial procedure was not unduly suggestive and was reliable
under the five-factor test in Neil v. Biggers, 409 U.S. 188 (1972). R. 19 at 20, PgId # 691.
The district court adopted the magistrate judge’s report and recommendation denying
Conley’s petition, but certified two issues for appeal: (1) Was Petitioner denied a fair trial by Sandra
Cooper’s in-court identification of him as the perpetrator?, and (2) Is the prosecutorial misconduct
claim procedurally defaulted?
For the reasons below, the district court properly rejected the petitioner’s arguments with
respect to these issues.
Under 28 U.S.C. § 2254(d) [AEDPA], “[a]n application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State-court proceedings unless the adjudication of
the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of,
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clearly established Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
The Supreme Court has further elaborated that the standard of “contrary to, or involv[ing]
an unreasonable application of, clearly established Federal law” is “difficult to meet,” because the
purpose of AEDPA is to ensure that federal habeas relief functions as a “guard against extreme
malfunctions in the state criminal justice systems and not as a means of error correction.” Greene
v. Fisher, 132 S. Ct. 38, 43 (2011) (quoting Harrington v. Richter, 131 S. Ct. 770, 786 (2011)).
Conley’s challenge to Mrs. Cooper’s identification testimony is without merit; the Ohio
Court of Appeals did not act contrary to, or unreasonably apply, clearly established federal law by
upholding the identification.
AEDPA deference applies even though the Ohio Court of Appeals did not directly cite
federal law in denying relief. The Court of Appeals cited Ohio cases2 that discuss the federal law
standards for evaluating the admissibility of in-court identification evidence. The Supreme Court
has made clear that AEDPA deference must still be given to the state court’s decision because
“[w]hen a federal claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state law procedural principles to the contrary.” Harrington, 131 S. Ct. at 784-85. In
2
State v. Wills, 120 Ohio App. 3d 320 (Ohio Ct. App. 1997); State v. McCroskey,
No. 2007CA00089, 2008 Ohio 2534 (Ohio Ct. App. May 19, 2008).
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Brown v. Bobby, we explained that in light of Harrington, “the mere fact that the Ohio Court of
Appeals did not specifically explain that it was ruling on Brown’s Sixth Amendment claim does not
prevent this court from deferring to that court’s opinion on habeas review.” 656 F.3d 325, 328-29
(6th Cir. 2011).
The Ohio Court of Appeals did not unreasonably apply federal law by holding that Conley
failed to establish that this pretrial identification was unduly suggestive. The court determined that
Conley’s argument boiled down to an attack on the weight of the identification evidence, not its
admissibility, and therefore declined to second-guess the trial jury’s conclusions. An in-court
identification based on a pretrial procedure that is “so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification” violates a defendant’s due process rights.
Mills v. Cason, 572 F.3d 246, 251 (6th Cir. 2009) (quoting Thigpen v. Cory, 804 F.2d 893, 895 (6th
Cir. 1986)). To evaluate suggestiveness, a court must consider “the effects of the circumstances of
the pretrial identification.” Howard v. Bouchard, 405 F.3d 459, 469-70 (6th Cir. 2005). There was
an unsuccessful photo lineup plus a later unplanned identification prior to trial. Conley argues that
these together produced an unduly suggestive identification.
First, Mrs. Cooper was shown a photo array shortly after the incident, but was unable to
identify the perpetrator because she had only viewed him in profile during the incident. Conley
cannot establish that the photo array itself was impermissibly suggestive. For an identification to
be impermissibly suggestive, it must steer the witness towards one suspect or another, independent
of the witness’s honest recollection. Wilson v. Mitchell, 250 F.3d 388, 397 (6th Cir. 2001). In this
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case, the photo array obviously did not steer Mrs. Cooper towards Conley, because she was unable
to identify Conley after viewing the array.
Second, Mrs. Cooper identified Conley after viewing him at a pretrial hearing. Conley
cannot establish that this was impermissibly suggestive, either in itself or because of the prior photo-
array procedure. Mrs. Cooper opened a courtroom door during a hearing, looked in, and saw a group
of twenty people standing in a corner. As one of those people turned to talk to someone else, she
saw his face in profile and “everything flooded back from that night.” She had no doubt that the man
she saw in the room was the man who had broken into her home. There was nothing impermissibly
suggestive about this because the record does not indicate that Mrs. Cooper was steered towards
identifying Conley; she did not know anything besides the bare fact that the man suspected of
breaking into her home would be among the people in that courtroom—similar to what any
eyewitness knows when asked to identify a suspect in a lineup or photo array.
Although Conley expresses skepticism about Mrs. Cooper’s account, the jury heard and
chose to believe it. On habeas review, the federal courts are in no position to second-guess that
determination, especially in light of AEDPA’s clear command that “a determination of a factual
issue made by a State court shall be presumed to be correct” unless the habeas petitioner rebuts that
presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Conley has made no such
showing. Conley also conceded at oral argument that the identification at the pretrial hearing would
not have been unconstitutionally suggestive without the previous photo array. Conley’s attorney
noted that but for the photo-array procedure, it “would be like the witness just saw this person out
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in public.” Oral Argument at 4:08. Conley also argues that the photo array steered Mrs. Cooper
towards him at the pretrial hearing. This argument is unpersuasive because he cannot establish that
Mrs. Cooper knew from the six-person array what the perpetrator looked like. In addition, Mrs.
Cooper identified Conley only when she saw his face in profile, and the photos in the array she was
shown were not in profile; it was for that reason she was originally unable to identify the perpetrator
from the array. Because it is clear that the photo array did not steer Mrs. Cooper towards Conley,
the Ohio court of appeals could reasonably conclude that the pretrial identification was
unconstitutionally suggestive.
Conley’s second argument on appeal, concerning alleged prosecutorial misconduct, is
procedurally defaulted. A federal court generally may not consider any claim for habeas relief that
was rejected by the state courts for failure to comply with the state’s procedural rules. Hargrave v.
Yukins, 374 F.3d 383, 387 (6th Cir. 2004) (citing Harris v. Reed, 489 U.S. 255, 262 (1989)). A four-
step analysis is used to determine whether a habeas petitioner’s claim is procedurally defaulted.
“First, the court must determine that there is a state procedural rule that is applicable to the
petitioner’s claim and that the petitioner failed to comply with the rule.” Maupin v. Smith, 785 F.2d
135, 138 (6th Cir. 1986). “Second, the court must decide whether the state courts actually enforced
the state procedural sanction.” Id. “Third, the court must decide whether the state procedural
forfeiture is an adequate and independent state ground on which the state can rely to foreclose review
of a federal constitutional claim.” Id. Finally, even if the first three steps establish procedural
default, a habeas petitioner can overcome the default by “demonstrat[ing] cause for the [procedural]
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default and actual prejudice as a result of the alleged violation of federal law, or demonstrat[ing] that
failure to consider the claims will result in a fundamental miscarriage of justice.” Girts v. Yanai, 501
F.3d 743, 755 (6th Cir. 2007); accord Harris, 489 U.S. at 262. Each of the four steps precludes
Conley from relief in this case.
First, the Ohio Court of Appeals determined, and Conley does not contest, that Conley failed
to object to the misconduct at trial as required by Ohio’s contemporaneous-objection rule. State v.
Conley, 2009 Ohio 1848, ¶27 (Ohio Ct. App. Apr. 13, 2009). Conley therefore concedes the first
step of the Maupin test.
Second, the Ohio Court of Appeals did not waive Ohio’s procedural-default rule when it
conducted plain error review of Conley’s prosecutorial-misconduct claim. As we held in Lundgren
v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006), “a state court’s plain error analysis does not save a
petitioner from procedural default” (citing Scott v. Mitchell, 209 F.3d 854, 866 (6th Cir. 2000)). Our
decision in Lundgren followed a long line of controlling precedent in this regard. See, e.g., Hinkle
v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000);
Scott, supra. The Ohio court’s alternative ruling on the merits did not remove the procedural default
because “a state court need not fear reaching the merits of a federal claim in an alternative holding.”
Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Coe v. Bell, 161 F.3d 320, 300 (6th Cir. 1998). The
Ohio Court of Appeals found no plain error on the record and held that “Additionally, appellant has
not persuaded us that the comments actually constitute prosecutorial misconduct.” State v. Conley,
2009 Ohio 1848, ¶28 (Ohio Ct. App. Apr. 13, 2009) (emphasis added). We do not read language
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relied upon by Conley from our subsequently reversed decision in Mitts v. Bagley, 620 F.3d 650, 656
(6th Cir. 2010), as altering our long-standing holdings in this regard.
Third, the state procedural rule constituted an adequate and independent ground of decision.
Ohio’s contemporaneous objection rule has been deemed an adequate and independent state ground
in numerous Sixth Circuit decisions. See, e.g., Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir.
2012); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011). Moreover, the Supreme Court has
indicated that the adequate-and-independent-state-ground doctrine, “[b]y its very definition . . .
requires the federal court to honor a state holding that is a sufficient basis for the state court’s
judgment, even when the state court also relies on federal law.” Harris, 489 U.S. at 264 n.10.
Conley is mistaken in arguing that the contemporaneous-objection rule does not constitute an
adequate and independent state ground where, as here, the state court also reached the merits of the
federal claim.
Fourth, Conley cannot excuse his procedural default because the ineffective-assistance claims
that he raises to establish “cause” are also defaulted, and because he cannot establish prejudice.
Conley concedes that he failed to raise his ineffective-assistance-of-trial-counsel claim on direct
appeal,3 and an ineffective assistance claim cannot establish “cause” if it was never considered by
the state courts—since under those circumstances it is also procedurally defaulted—unless the
3
Although Conley raised an ineffective-assistance claim on other grounds, he did not address trial
counsel’s failure to object to the alleged prosecutorial misconduct. Conley admits that it “cannot be
explained” why his direct appeal alleged prosecutorial misconduct and acknowledged his trial counsel’s
failure to object to that misconduct, but did not raise that issue as a basis for claiming ineffective assistance
of counsel. See Petitioner’s Br. at 49.
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petitioner can establish cause and prejudice to excuse the default. Edwards v. Carpenter, 529 U.S.
446, 453 (2000).
Conley raises an ineffective-assistance-of-appellate-counsel claim to excuse the default of
his ineffective-assistance-of-trial-counsel claim, but because Conley did not present either claim
before the state courts, both are procedurally defaulted and cannot excuse the default of his
prosecutorial-misconduct claim. “A claim of ineffective assistance . . . must be presented to the state
courts as an independent claim before it may be used to establish cause for a procedural default.”
Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). Conley also never
filed an Ohio Rule of Appellate Procedure 26(B) application—a procedure to reopen a criminal case
based on an ineffective-assistance-of-appellate-counsel claim.
In addition, Conley cannot establish prejudice because his prosecutorial-misconduct claim
is meritless. As in Hall v. Vasbinder, 563 F.3d 222, 237 (6th Cir. 2009), “the prejudice analysis for
the procedural default and the prejudice analysis for the ineffective assistance of counsel argument
are sufficiently similar to treat as the same in this context.” Under the Strickland standard for
ineffective assistance, Conley must show that his counsel’s performance (1) was objectively deficient
and (2) prejudiced the defense so as to render the trial fundamentally unfair. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Conley has not established that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different,” as required by Strickland. Id. at 694.
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The Ohio Court of Appeals considered and rejected Conley’s allegations that the prosecutor
(1) improperly vouched for the Coopers’ credibility, and (2) suggested that Conley lied on the stand.
Because the prosecutor merely argued the evidence, his comments did not deprive Conley of a fair
trial. Since no misconduct occurred, Conley’s ineffective-assistance argument fails because his
counsel was under no professional obligation to make meritless objections. See Bradley v. Birkett,
192 F. App’x 468, 475 (6th Cir. 2006). Moreover, because no misconduct occurred, defense
counsel’s failure to object could not have prejudiced the defense or undermined confidence in the
outcome of the trial. Conley cannot establish the “prejudice” needed to overcome the procedural
default of his misconduct claims.
Finally, Conley has not sufficiently established that he is actually innocent, such that the
failure to consider his misconduct claim would result in a fundamental miscarriage of justice. A
colorable actual-innocence claim “requires petitioner to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S.
298, 324 (1995). Conley has made no such compelling showing here. He merely claims that after
his trial, Mr. Cooper said to a local man named Mathers, who had previously been convicted of
breaking and entering and receiving stolen property, “What are you doing here? I thought I put you
in jail.” Conley suggests an alternative perpetrator for his crime and attempts to cast doubt on Mr.
Cooper’s identification, but the trial jury already evaluated his identification and deemed it credible.
The district court’s denial of Conley’s habeas petition is affirmed.
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