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Full Opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRANDON W. LEIGH, : Case No. 3:24-cv-192
:
Petitioner, :
: Judge Thomas M. Rose
vs. : Magistrate Judge Elizabeth P. Deavers
:
WARDEN, LONDON :
CORRECTIONAL INSTITUTION :
:
Respondent. :
REPORT AND RECOMMENDATIONS
Brandon W. Leigh, a state prisoner proceeding without counsel, has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court to consider the
Petition (ECF No. 1, 19), the Return of Writ (ECF No. 11, 20), Petitionerâs Traverse (ECF No.
25), and the state court record. (ECF No. 10, 10-1, 10-2, 10-3, 10-4, 10-5, 27-1. 27-2, 27-3, 27-4).
For the reasons that follow, it is RECOMMENDED that this action be DENIED and
DISMISSED.
I. FACTUAL BACKGROUND
On August 31, 2018, a Montgomery County, Ohio grand jury indicted Leigh on four counts
in connection with the death of Keyona Murray and her unborn child, including murder in violation
of Ohio Rev. Code Ann. § 2923.161, involuntary manslaughter in violation of O.R.C.
§2903.04(A), improperly discharging a firearm at or into a habitation, in violation of violation of
O.R.C. §2923.16(A)(1), and having weapons while under disability, in violation of O.R.C
§2923.13(A)(2). The first three charges included a firearm specification.
The following represents the relevant facts and procedural history as reported by the
Second District Court of Appeals (âCourt of Appealsâ):
{¶ 3} According to the Stateâs evidence at trial, at approximately 8:20 p.m. on
February 16, 2018, multiple gunshots were fired into the rear of the home of
Jacqueline Mooty, located at 122 Lorenz Avenue in Dayton. The shots came from
an alley behind the home. When the shooting occurred, Mooty was home with her
boyfriend, her six children (ranging in age from 6 to 22 years old), her two-year-
old granddaughter, and others. Keyona Murray, Mootyâs 22-year-old daughter, was
shot in the head in Mootyâs first-floor rear bedroom. Keyona, who was
approximately 11-weeksâ pregnant, died from her injuries at the hospital.
{¶ 4} The main issue at trial was the identity of the shooter. One of Keyonaâs
brothers, Marrico Murray, testified that he had met Leigh through his (Marricoâs)
close friend, Shareef Tillman. Marrico communicated with Leigh using Facebook
Messenger, where Leigh used the profile name âBrando So Humble.â On February
14, 2018, while Marrico, Tillman, and Leigh were together, Leigh showed the
others his 9mm handgun. Marrico testified that Tillman put the gun in his pocket
and left with it. Believing that Marrico had stolen the gun, Leigh then sent Marrico
a series of messages that Marrico interpreted as warnings to return the gun. On
February 15, 2018, the day before the shooting, Marrico received a final message
from Leigh, indicating âitâs on now,â as Marrico interpreted it.
{¶ 5} Marrico did not immediately identify Leigh as a suspect to the police. After
additional questioning several days following the shooting, Marrico showed the
Facebook messages to detectives. During the investigation, Detective Zachary
Farkas obtained additional Facebook messages between Leigh and several other
individuals in which Leigh discussed getting robbed and his efforts to locate
Marrico.
{¶ 6} Two additional Stateâs witnesses connected Leigh to the shooting. Aleea Lee,
who thought of Leigh as a son, testified that, at approximately 7:30 to 8:00 p.m. on
the night of the shooting, she drove Leigh to a recreation center near Third Street
and James H. McGee Boulevard. Between 8:30 and 8:45 p.m., Leigh asked to be
picked up at the intersection of Oakridge Drive and Gramont Avenue, a location
near 122 Lorenz Avenue.
{¶ 7} Angela Williams, who had lived at Leeâs home with her girlfriend, stated that
a few days prior to the shooting, she overheard a conversation between Leigh and
others where Leigh spoke about âneeding to get his sh*t back.â Williams stated that
Leigh was referring to a pistol. Williams also heard Leigh talk to his sister on the
telephone about meeting so that he could get another gun; he stated he needed it to
get his property back. Leigh had left shortly after the conversation with his sister.
A few days after the shooting, Leigh asked Williams if she had heard what had
happened. When Williams asked Leigh if he had something to do with it, Leigh
told her that he was there and âdid it.â
{¶ 8} During the afternoon of February 23, 2018, a week after the shooting, the
police went to Leeâs home and arrested Leigh. Before the police arrived at the
house, Lee and Leigh saw a detective drive by in a truck. Leigh said to Lee, âIâm
about to go to jail.â
{¶ 9} Leigh was 17 years old when the shooting occurred. Upon his arrest, he was
charged by complaint with murder in juvenile court. On April 3, 2018, the State
filed an amended complaint adding charges of involuntary manslaughter and
improper discharge of a firearm at or into a habitation, each with firearm
specifications, as well as having weapons while under disability. It further sought
to have the matter transferred to adult court. On August 3, 2018, the juvenile court
conducted a probable cause hearing during which four witnesses testified, including
Angela Williams. The juvenile court found that there was probable cause to believe
that Leigh was responsible for the offenses, and it ordered the case transferred to
the general division of the common pleas court. On August 31, 2018, Leigh was
indicted for murder, involuntary manslaughter, and improper discharge of a firearm
at or into a habitation, each with a firearm specification. He was also indicted for
having weapons while under disability.
{¶ 10} In March 2020, the matter proceeded to a bench trial on having weapons
while under disability and a jury trial on the remaining charges and specifications.
The State presented 13 witnesses and approximately 100 exhibits. Williams did not
appear for trial as required by subpoena, and the police were unable to locate her.
The court found that she was an unavailable witness, and it permitted an audio-
recording of her probable cause hearing testimony to be played for the jury.
{¶ 11} Leigh testified on his own behalf. He denied having a disagreement with
Marrico, sending all the Facebook messages that were presented at trial, and
knowing where Marrico lived. He stated that he had stopped using his âBrando So
Humbleâ account prior to February 2018. Leigh further testified that Lee did not
take him to the recreation center on February 16. He stated that he went to school
that day, that Lee picked him up and took him to her home, and that his mother
picked him up around 8:30 p.m. and took him home. Leigh denied that he had
committed the shooting, that he had admitted to Williams that he did it, and that he
had said that he was going to jail on February 23. Leigh claimed that he had never
been to 122 Lorenz Avenue.
(ECF No. 10 at PageID# 214-217).
Leigh was sentenced to thirty years to life. (Id. at PageID# 54-59). He appealed his
conviction to the Court of Appeals. (Id. at PageID# 60-67). Leighâs counsel filed an Anders1 brief
that identified two potential issues for appeal but requested permission to withdraw as counsel
because he believed the issues were frivolous. (Id. at PageID# 68-84). After reviewing Leighâs
subsequent pro se brief, the Court of Appeals entered an order setting aside the Anders brief and
appointing new counsel to represent Leigh. (Id. at PageID# 126-149, 152-153). Leighâs new
counsel filed a brief that asserted five assignments of error:
(1) Did the trial court commit reversible error by admitting hearsay testimony of
Angela Williams and admitting her preliminary hearing testimony in violation
of [Leighâs] constitutional rights?
(2) Did the trial court commit reversible error by allowing testimony that asserted
[Leigh] sent Facebook Messenger messages, which contained hearsay, and that
contained evidence of other bad acts?
(3) Was [Leigh] denied effective assistance of counsel by trial counselâs failure to
object to authentication of Angela Williamsâ audio, a prejudicial error, and
other acts evidence?
(4) Did cumulative error deny [Leigh] a fair trial?
(5) Did the state fail to prove all elements of the charged offenses or [Leighâs]
convictions?
(Id. at PageID# 166).
On January 13, 2023, the Court of Appeals issued a decision affirming Leighâs conviction.
(Id. at PageID# 213-251). Leigh filed a Notice of Appeal with the Ohio Supreme Court and a
1 Anders v. California, 386 U.S. 738, 744 (1967) (â[I]f counsel finds his case to be wholly frivolousâŠhe should
so advise the court and request permission to withdraw. That request mustâŠbe accompanied by a brief referring to
anything in the record that might arguably support the appealâŠ; the courtâŠthen proceedsâŠto decide whether the
case is wholly frivolous. If it so finds it may grant counselâs request to withdraw and dismiss the appealâŠor proceed
to a decision on the meritsâŠ[I]f [the court] finds any of the legal points arguable on their meritsâŠit mustâŠafford the
indigent the assistance of counsel to argue the appeal.â)
Memorandum in Support of Jurisdiction. (Id. at PageID# 255-315). He asserted three propositions
of law:
(1) Appellate courts review alleged Confrontation Clause violations de novo. The
Second District Court of Appeals erred as a matter of law when it rejected
Brandon Leighâs Confrontation Clause claim under an abuse-of-discretion
standard of review.
(2) Under Crawford, assessing the admissibility of testimonial hearsay under the
Confrontation Clause calls for a two-step approach. First, courts must decide
whether testimonial hearsay is admissible under the rules of evidence. Second,
if so, they must then separately decide whether admission of that evidence
violates the Confrontation Clause. A court errs as a matter of law when it
collapses these separate levels of protection into a single rule-based
admissibility analysis.
(3) Under current Ohio law, an opportunity to question a witness at a preliminary
hearing, especially one in juvenile court, does not satisfy the Confrontation
Clauseâs guarantee of an adequate âprior opportunity for cross-examination.â
Alternatively, the adequacy of such hearings must be determined on a case-by-
case basis where the focus of preliminary questioning and the extent or lack of
discovery must be considered.
(Id. at PageID# 258). On May 9, 2023, the Ohio Supreme Court declined jurisdiction. (Id. at
PageID# 328).
On January 27, 2023, Leigh filed an App. R. 26(A)(1) Application for Reconsideration of
his appeal with the Court of Appeals. (Id. at PageID# 329-348). He raised three issues for
reconsideration: (1) his trial counsel was ineffective because Juror #15âs actual or implied bias
deprived him of a fair trial; (2) the Court of Appeals erred in its conclusion on sufficiency of the
evidence, the admission of Angela Williams testimony, and the admission of improper character
evidence; and (3) and his Fourth Amendment rights were violated when he was subject to a
warrantless arrest. (Id.). The Court of Appeals ruled that Leighâs Application was untimely by four
days. (Id. at PageID# 356). It alternatively concluded that Leighâs first two issues lacked merit,
and the third was not properly before the court because it was not raised in the original appeal. (Id.
at PageID# 353-365).
Leigh appealed the denial of his Application for Reconsideration to the Ohio Supreme
Court. (Id. at PageID# 366-367). He argued a single proposition of law:
Where triggered, the doctrine of implied bias creates a conclusive presumption of
juror bias as a matter of law such that the law infers bias from the factual
circumstances. As such, defendants need not prove actual or personal bias when
invoking the implied bias doctrine; they need only show that the facts give rise to
the presumption.
(Id. at PageID# 369). The Ohio Supreme Court declined jurisdiction. (Id. at PageID# 404).
II. FEDERAL HABEAS PROCEEDINGS
On July 3, 2024, Leigh filed his original federal habeas petition, which asserts five grounds
for relief:
GROUND ONE: Trial court failed to prove all elements of the charged offenses of
petitioner conviction were against the manifest weight of the
evidence.
Supporting Facts: The State failed to prove that he discharged a firearm at a house, a
key element of all his convictions. He states: â[N]o one testified that
Appellant ever possessed a firearm after Marrico took his.
Additionally, if he discharged a firearm in the neighborhood, no
testimony established that he did so with an awareness that a bullet
would hit a house.â Petitioner argues that, because the State failed
to present evidence that he improperly discharged a firearm at or
into a habitation, all his convictions were based on insufficient
evidence and against the manifest weight of the evidence.
GROUND TWO: The trial court committed reversible error by allowing testimony
that Leigh sent messages via Facebook Messenger, which contained
hearsay and discussed other bad acts.
Supporting Facts: The trial court âerred by allowing testimony that asserted [he] sent
Facebook Messenger messages, which contained hearsay, and that
contained evidence of other bad acts.â Petitioner argues that the
State failed to produce any evidence that petitioner, and not
someone else, sent the relevant messages from the Brando So
Humble Facebook account. He further asserts that the messages
should have been excluded because they contained inadmissible
hearsay and evidence of prior bad acts.
GROUND THREE: Trial counselâs failure to object to authentication of Angela
Williamsâ audio, a prejudicial juror, and other acts evidence fell
below the standard of reasonableness and denied Petitioner effective
assistance of counsel.
Supporting Facts: Counsel failed to object to the audio testimony of Angela Williams,
allowed a prejudicial juror by failing to object and that juror was the
Forman, and trial counsel allowed prejudicial other acts evidence to
be put forth without objection.
GROUND FOUR: Cumulative error denied Petitioner a fair trial.
Supporting Facts: Petitioner claims that multiple errors deprived him of a fair trial.
GROUND FIVE: Trial court failed to prove all elements of the charged offenses or
Petitioner conviction were against the manifest weight of the
evidence.
Supporting Facts: There was insufficient evidence to convict petitioner of the charges
of Murder, Involuntary Manslaughter, and Discharging a Firearm.
(ECF No. 1-1 at PageID# 9-13). Leigh subsequently sought leave to amend his petition (ECF No.
16), which was granted (ECF No. 18), and on February 26, 2025, Leigh filed an Amended Petition,
which asserts five additional claims:
GROUND SIX: Appellate courtsâ review alleged confrontation clause violation de
novo. The Second District Court of Appeals erred as a matter of law
when it rejected Brandon Leighâs Confrontation Clause claim under
an abuse of discretion standard of review.
Supporting Facts: The Second District correctly recounted that Brandon âargue[d] that
Williamsâs probable cause hearing testimony constituted hearsay
and that its admission violated his rights under the Confrontation
Clause of the Sixth Amendment.â
GROUND SEVEN: Under Crawford assessing the admissibility of testimonial hearsay
under the Confrontation clause calls for a two-step approach. First
courts must decide whether the testimonial hearsay is admissible
under the rules of evidence. Second if so, they must then separately
decide whether admission of that evidence violates the confrontation
clause. A court errs as a matter of law when it collapses these
separate levels of protection into a single rule-based admissibility
analysis.
Supporting Facts: When determining whether the introduction of the testimonial
hearsay statements of an unavailable witness violates a defendantâs
confrontation clause rights, courts must first assess their
admissibility under the evidence rules, and then, if otherwise
admissible, separately determine whether their admission violates
the constitutionâs demands. Otherwise, the hearsay rule swallows
the constitution protection.
GROUND EIGHT: An opportunity to question a witness at a preliminary hearing
especially one in juvenile court does not satisfy the Confrontation
Clauseâs guarantee of an adequate âprior opportunity for cross-
examination.â Alternatively, the adequacy of such hearing must be
determined on a case-by-case basis where the focus of a preliminary
questioning and the extent and lack of discovery must be considered.
Supporting Facts: The Second District effectively conflated Petitionerâs constitutional
claim for a non-constitutional one.
GROUND NINE: The doctrine of implied bias creates a conclusive presumption of
juror bias as a matter of law such that the law infers bias from the
factual circumstances. As much, defendants need not prove actual
or personal bias when invoking the implied bias doctrine; they need
only show that the facts have given rise to the presumption.
Supporting Facts: Juror# 15 should have been removed based on the similarity
between the facts in this case and the prospective jurorâs drive-by
shooting incident.
GROUND TEN: Petitioner[âs] Fourth Amendment rights were violations when he
was subjected to a warrantless arrest.
Supporting Facts: The Petitioner was arrested without an arrest warrant the arrest was
not made at his residence. As such the petitioner will likely be
deeming to have been in a âpublic placeâ thus permitting a
warrantless arrest.
(ECF No. 19 at PageID# 1395-1400).
Respondent filed a Return of Writ for both Petitions. (ECF No. 11, 20). Respondent
contends that the only claims Leigh properly preserved for federal habeas review are the three
claims concerning the Confrontation ClauseâGrounds Six, Seven, and Eight (ECF No. 20 at
PageID# 1410), and these claims are meritless. (Id. at PageID# 1413-1422). Respondent argues
that the remaining claims are procedurally defaulted because they were not presented to the Ohio
Supreme Court. (Id. at PageID# 1411). Respondent also argues that Grounds Two, Four, and Ten
are non-cognizable. (Id. at PageID# 1424-1426, 1432). Leigh filed a Traverse on June 23, 2025,
which includes additional arguments on the merits of his claims and a blanket denial that any are
procedurally defaulted. (ECF No. 25).
III. STANDARDS OF REVIEW
A. AEDPA
The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). The United States Supreme Court has described AEDPA as âa
formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in
state courtâ and emphasized that courts must not âlightly conclude that a Stateâs criminal justice
system has experienced the âextreme malfunctionâ for which federal habeas relief is the remedy.â
Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).
See also Renico v. Lett, 559 U.S. 766, 773 (2010) (âAEDPA...imposes a highly deferential standard
for evaluating stateâcourt rulings and demands that state-court decisions be given the benefit of
the doubt.â) (internal quotation marks, citations, and footnote omitted).
AEDPA limits the federal courtsâ authority to issue writs of habeas corpus and forbids a
federal court from granting habeas relief with respect to a âclaim that was adjudicated on the merits
in State court proceedingsâ unless the state-court decision either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, 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.
28 U.S.C. § 2254(d).
The United States Court of Appeals for the Sixth Circuit has explained the meaning of the
standards found in § 2254(d)(1) as follows:
Under the âcontrary toâ clause, a federal habeas court may grant the
writ âif the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts.â Bell v.
Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)
(citing Williams v. Taylor, 529 U.S. 362, 405â06, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000)). Under the âunreasonable applicationâ
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from the Supreme
Courtâs decisions but unreasonably applies the law or bases its
decision on an unreasonable determination of the facts, in light of
the record before the state court. Harrington v. Richter, 562 U.S. 86,
100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams, 529 U.S. at
412â13, 120 S.Ct. 1495.
Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018).
Moreover, under § 2254(d)(2), a state courtâs factual determination is not âunreasonableâ
merely because the federal habeas court would have reached a different conclusion. Wood v. Allen,
558 U.S. 290, 301 (2010). Instead, a state courtâs factual findings are âonly unreasonable where
they are ârebutted by clear and convincing evidenceâ and do not have support in the record.â Moritz
v. Woods, 692 F. Appâx 249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158
(6th Cir. 2017)) (internal quotation marks omitted). Moreover, â[f]actual determinations by state
courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1),
and a decision adjudicated on the merits in a state court and based on a factual determination will
not be overturned on factual grounds unless objectively unreasonable in light of the evidence
presented in the state-court proceeding[.]â Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010)
(quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
The burden of satisfying AEDPAâs standards rests with the petitioner. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
B. Procedural Default
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and to prevent needless friction between the state and federal courts, a state
criminal defendant with federal constitutional claims is required to first present those claims to the
state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so but still has
an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust
state remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor,
404 U.S. 270, 275â78 (1971)). Where a petitioner has failed to exhaust claims but would find
those claims barred if later presented to the state courts, âthere is a procedural default for purposes
of federal habeas.â Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), holding modified by
Martinez v. Ryan, 566 U.S. 1 (2012).âŻ
Over time, the term âprocedural defaultâ has come to describe a situation where a person
convicted of a crime in a state court fails (for whatever reason) to properly present a particular
claim to the highest court of the state so that the state has a fair chance to correct any errors made
in the course of the trial or the appeal, before a federal court intervenes in the state criminal
process. This ârequires the petitioner to present âthe same claim under the same theoryâ to the
state courts before raising it on federal habeas review.â Hicks v. Straub, 377 F.3d 538, 552â53 (6th
Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of
âfairly presentingâ a claim to the state courts is that a habeas petitioner must do so in a way that
gives the state courts a fair opportunity to rule on the federal law claims being asserted. That
means that if the claims are not presented to the state courts in the way in which state law requires,
and the state courts therefore do not decide the claims on their merits, neither may a federal
court. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), âcontentions
of federal law which were not resolved on the merits in the state proceeding due to [the] failure to
raise them there as required by state procedureâ also cannot be resolved on their merits in a federal
habeas case â that is, they are âprocedurally defaulted.â It is well settled that â[a] common
example of a procedural default is a failure to raise a claim in state court in a timely
manner.â Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021).âŻ
To determine whether procedural default bars a habeas petitionerâs claim, courts in the
Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);
McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin standard). First,
the court must determine whether there is a state procedural rule that is applicable to the
petitionerâs claim and whether the petitioner failed to comply with the rule. Second, the court
must determine whether the state courts actually enforced the state procedural sanction. Third, the
court must determine whether the forfeiture is an adequate and independent state ground on which
the state can rely to foreclose review of a federal constitutional claim. Finally, if the court
determines that a state procedural rule was not complied with and the rule has an adequate and
independent state ground, then the petitioner may still obtain review of his or her claims on the
merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or she
was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138. In order to
establish cause, a petitioner must show that âsome objective factor external to the defenseâ
impeded the petitionerâs efforts to comply with the stateâs procedural rule. Murray v. Carrier, 477
U.S. 478, 488 (1986). The petitioner bears the burden of showing cause and prejudice. Hinkle v.
Randle, 271 F.3d 239, 245 (6th Cir. 2001).
IV. DISCUSSION
A. Procedural Default
Respondent argues that Grounds One, Two, Three, Four, Five, Nine, and Ten are
procedurally defaulted. (ECF No. 20 at PageID# 1410-1411). The Court agrees. To exhaust state
court remedies, a claim must be fairly presented âto every level of the state courts in one full
round.â Ambrose v. Romanowski, 621 F. Appâx 808, 814 (6th Cir. 2015).
Leigh presented Grounds One, Two, Three, Four, and Five to the Court of Appeals as
assignments of error (ECF No. 10 at PageID# 166) but failed to include those claims in his appeal
to the Ohio Supreme Court. (Id. at PageID# 258). Leigh did not include Ground Ten as an
assignment of error to the Court of Appeals, a fact that was pointed out when the Court of Appeals
denied Leighâs Application for Reconsideration. (Id. at PageID# 361). Accordingly, Leigh failed
to present Grounds One, Two, Three, Four, Five, and Ten to both the Court of Appeals and the
Supreme Court of Ohio and these grounds are procedurally defaulted.
In Ground Nine, Leigh argues that the trial court erred by seating a biased juror. (ECF No.
19 at PageID# 1398). Leigh presented an assignment of error to the Court of Appeals that his
counsel was ineffective for failing to challenge Juror #15. (Id. at PageID# 166). In his Application
for Reconsideration, Leigh argued that the Court of Appeals overlooked actual or implied juror
bias. (Id. at PageID# 329-348). When the Court of Appeals denied Leighâs Application for
Reconsideration, it treated Leighâs argument as an extension of the ineffective assistance of
counsel claim he raised in his appeal. (Id. at PageID# 356-360). But when Leigh appealed that
decision to the Supreme Court of Ohio, he presented the claim solely as a trial court error. (Id. at
PageID# 369). Thus, Leigh failed present Ground Nineâs trial court error to both the Court of
Appeals and the Ohio Supreme Court, and it is also procedurally defaulted.
A petitioner may procedurally default a claim by failing to raise a claim in state court and
pursue that claim through the stateâs âordinary appellate review procedure.â OâSullivan v.
Boerckel, 526 U.S. 838, 847 (1999). If, at the time of the federal habeas petition, state law no
longer allows the petitioner to raise the claim, the claim is procedurally defaulted. Engle v. Isaac,
456 U.S. 107, 125 n.28 (1982). The deadlines have long passed for Leigh to properly present
Grounds One, Two, Three, Four, Five, Nine, and Ten to both the Court of Appeals and Ohio
Supreme Court. See Ohio App. R. 4, Ohio S. Ct. Prac. R. 7.01.
Leigh procedurally defaulted Grounds One, Two, Three, Four, Five, Nine, and Ten by
failing to properly exhaust his state remedies, which are now unavailable. He offers no potential
excuse for the procedural default. (ECF No. 25). In any event, as explained below, all ten of
Leighâs claims fail on the merits.
B. Merits of the Claims Properly Before the Court
Grounds Six, Seven, and Eight are interrelated and will be addressed together. In Ground
Six, Leigh contends that the Court of Appeals erred by reviewing his Confrontation Clause claim
under an abuse of discretion standard. (ECF No. 19 at PageID# 1395). In Ground Seven, Leigh
contends that the Court of Appeals improperly analyzed the merits of his Confrontation Clause
claim. (Id. at PageID# 1396). In Ground Eight, Leigh contends that his Confrontation Clause claim
has merit because the juvenile court hearing did not provide an adequate opportunity for cross-
examination of the unavailable witness. (Id. at PageID# 1397).
Leigh was arrested on February 23, 2018. (ECF No. 10 at PageID# 216). He was charged
in juvenile court with murder, involuntary manslaughter, improper discharge of a firearm at or into
a habitation, and having weapons while under disability. (ECF No. 10-1 at 446-447). The state
sought to have the matter transferred from juvenile court. (ECF No. 10 at PageID# 216). The
juvenile court held a hearing on August 3, 2018. (ECF No. 10-1), to determine whether probable
cause existed to try Leigh as an adult. See OH ST JUV P Rule 30 (âIn any proceeding where the
court considers the transfer of a case for criminal prosecution, the court shall hold a preliminary
hearing to determine if there is probable cause to believe that the child committed the act alleged
and that the act would be an offense if committed by an adultâŠâ).
Four witnesses testified at the preliminary hearing in juvenile court, including Angela
Williams. (ECF No. 10-1). Williams testified that she lived with her girlfriend at Aleea Leeâs
home, where Leigh was a frequent overnight visitor. (Id. at PageID# 533-535). According to
Williams, a few days before Keyona Murrayâs murder, she overheard Leigh speaking to someone
in the living room, saying that he âneeded to get his shit back.â (Id. at PageID# 536-537). Williams
testified that it was her impression Leigh was referring to a pistol. (Id. at PageID# 538). Williams
testified that she also heard Leigh on the telephone with his sister. (Id. at PageID# 540). According
to Williams, Leigh was making plans with his sister to get a gun so he could âget his shit back.â
(Id.).
Williams testified that she found out about Keyona Murrayâs murder from Facebook posts.
(Id. at PageID# 542). Williams said that it was âobviousâ to her that the murder was connected to
Leighâs conversations she overheard. (Id. at PageID# 542). Williams testified that she became
confident that Leigh was involved in Murrayâs murder because of a conversation she had with
Leigh:
He walked up to me, he said, Auntie, you -- did you hear about what happened? I
said, what you talking about? He said, the shooting. I said where, in Westwood,
that girl that was pregnant? He said, yeah. He said -- I said, why, you have
something to do with that? He said, what you mean I have something to do with it?
I did it.
(Id. at PageID# 542-544). Williams also testified about the day of the shooting:
Q: Uhm-hmm. Okay. So how do you know Aleea took [Leigh] to the house on
the night of the shooting?
A: There was a group discussion about where they was going, and when they
came back that same night, I heard them come in, but I heard them like --
like I want to say hyped, like â
Q: You say they were hyped?
A: Um-hmm.
Q: Okay. And itâs your understanding that that was the same night as the
shooting on Lorenz?
A: Thatâs what I felt -- I felt like. I canât say for sure.
(Id. at PageID# 550).
On cross-examination, Williams testified that she did not know Leigh or anyone that lived
in the house on Gard before she moved in two months before the shooting. (Id. at PageID# 556-
557). Williams testified that Leigh did not talk to her often. (Id. at PageID# 560-561). She also
admitted that she could not recall any of the dates of the events she testified to on direct
examination. (Id. at PageID# 561-563). Williams said that she did not know who Leigh was talking
to when she overheard the conversation about âgetting his shit back,â and she did not call the police
when Leigh reportedly confessed to her. (Id. at PageID# 564, 572).
Leighâs case was transferred to the adult division of the Montgomery County Court of
Common Pleas. (ECF No. 10-1 at PageID# 423). Leigh was indicted by the grand jury on August
31, 2018. (Id. at PageID# 34-37). He was arraigned and plead not guilty on September 6, 2018.
(Id. at PageID# 38). Leighâs trial was originally set for November 4, 2019. (Id. at PageID# 418).
On October 25, 2019, the state filed a motion to declare Angela Williams unavailable and use her
testimony from the August 3, 2018, hearing at trial. (Id. at PageID# 418). The state argued that it
could not locate and serve Angela Williams with an appearance subpoena and the United States
Supreme Court opinion in Crawford v. Washington, 541 U.S. 36 (2004), permitted the state to use
her prior testimony at trial because she was cross-examined by Leighâs counsel during the juvenile
court hearing. (ECF No. 27-1 at PageID# 1466-1471). The defense opposed the motion (id. at
PageID# 1473-1476), but the issue remained unresolved at the time because the trial was
continued, and Leigh was appointed new counsel. (Id. at PageID# 417)
Leighâs trial started on March 9, 2020. (ECF No. 10-3). The same day, the prosecution
sought and received a material witness warrant for Angela Williams. (Id. at PageID# 1478).
According to the warrant request, Williams was served with a subpoena for her appearance at trial
on January 24, 2020, but she failed to appear as directed. (Id.). The trial court conducted a hearing
on the stateâs motion to declare Williams an unavailable witness (ECF No. 27-5 at 1485-1486) on
March 10, 2020. (ECF No. 10-3 at PageID# 870-883). Detective Zach Farkas testified that Dayton
Police Department officers had been unable to locate Williams despite attempts at all known
telephone numbers and addresses and contacting local hospitals and jails. (Id. at PageID# 874-
880).
Leighâs counsel argued that the state should be unable to use Angela Williamsâ testimony
because the proceedings in juvenile court were not a full and fair hearing, principally because the
defense lacked access to complete information to conduct a cross-examination, including
Williamsâ prior convictions.2 (Id. at PageID# 882). The trial court concluded that the state could
use the recording of Angela Williamsâ prior testimony because she was an unavailable witness and
the defense had the opportunity to cross-examine her at the August 3, 2018, juvenile court hearing.
(Id. at PageID# 883). The state consequently played the taped testimony for the jury. (Id. at
PageID# 917-918; ECF No. 27-4).
Leigh contends that the use of Angela Williamsâ taped testimony from the August 3, 2018,
hearing violated his Confrontation Clause rights (Ground Eight) and the Court of Appeals analyzed
the issue incorrectly (Grounds Six and Seven). The Confrontation Clause guarantees that â[i]n all
2 The record does not include information on the nature of the convictions.
criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
against him.â U.S. CONST. amend. VI. Crawford v. Washington, 541 U.S. 36, 59 (2004). The
Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable,
and the accused has had a prior opportunity to cross-examine the declarant. Id. The cross-
examination requirementâs purpose is to enable the opponent to test witness credibility and the
reliability of the proffered testimony. Id. at 61. âThe central concern of the Confrontation Clause
is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous
testing in the context of an adversary proceeding before the trier of fact.â Maryland v. Craig, 497
U.S. 836, 845 (1990). The right to cross-examine guaranteed by the Confrontation Clause includes
the dual rights âto delve into the witnessâ story to test ... perceptions and memoryâ and impeach
the witness by ârevealing possible biases, prejudices, or ulterior motives.â Davis v. Alaska, 415
U.S. 308, 316 (1974). Confrontation Clause violations are subject to harmless-error analysis.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
The Court of Appeals denied Leighâs Confrontation Clause claim. (ECF No. 10 at PageID#
237-244). The court correctly identified Crawford as the controlling Supreme Court authority (id.
at PageID# 238) and concluded that a prior opportunity for cross-examination was all that was
required to satisfy the requirements of the Confrontation Clause. (Id. at PageID# 242). Leigh
contends that he is entitled to habeas relief because the August 3, 2018, juvenile court hearing was
not an adequate opportunity for cross-examination. (ECF No. 19 at PageID# 1397).
The Sixth Circuit has considered, and rejected, similar arguments seeking habeas relief
based on a Confrontation Clause violation. The Sixth Circuit has noted that there is âsome question
whether a preliminary hearing necessarily offers an adequate prior opportunity for cross-
examination for Confrontation Clause purposes.â Al-Timimi v. Jackson, 379 F. Appâx 435, 437â
38 (6th Cir. 2010). But the Supreme Court has never held that a defendant is denied his rights
under the Confrontation Clause when a witness is unavailable at trial and the court admits the
witnessâs preliminary examination testimony. Id. at 438. On federal habeas review, a state courtâs
determination that testimony from the preliminary examination was properly admitted is not an
unreasonable application of clearly established Supreme Court precedent. Id. at 438â40. In
Williams v. Bauman, the Sixth Circuit likewise held that the petitionerâs âsuggestion that his
preliminary hearing categorically did not afford him an adequate opportunity to cross-examineâ
failed under AEDPA because he did not âidentify any Supreme Court precedent supporting his
contention.â Williams v. Bauman, 759 F.3d 630, 635â36 (6th Cir. 2014). While the efficacy of
cross-examination during a preliminary hearing may be debatable, â[i]f there is room for
reasonable debate on the issue, the state courtâs decision to align itself with one side of the
argument is necessarily beyond th[e] courtâs power to remedy under § 2254, even if it turns out to
be wrong.â Id. at 636. See also, Miller v. MacLaren, 737 F. Appâx 269, 274â75 (6th Cir. 2018)
(same).
Even though the Sixth Circuit has questioned whether, under Crawford, prior opportunity
for cross-examination is both a necessary and sufficient condition for compliance with the
Confrontation Clause, habeas relief is not appropriate on Ground Eight because the Supreme Court
has not addressed this specific question. Accordingly, the Court cannot say that the Court of
Appeals was unreasonable for concluding that the use of Angela Williamsâ testimony met the
requirements of the Confrontation Clause because it was subject to cross-examination. See
Harrington, 562 U.S. at 101 (âA state courtâs determination that a claim lacks merit precludes
federal habeas relief so long as âfairminded jurists could disagreeâ on the correctness of the state
courtâs decision.â).
Habeas relief is also not due for Ground Six, in which Leigh contends the Court of Appeals
improperly reviewed his Confrontation Clause claim for abuse of discretion. The record reveals
that the Court of Appeals reviewed the admissibility of Angela Williamsâ testimony under Ohio
evidence rules for an abuse of discretion. (ECF No. 10 at PageID# 238). To the extent that Leigh
is challenging the state appellate courtâs procedures, this type of claim is not cognizable in federal
habeas review. See Estelle v. McGuire, 502 U.S. 62, 67â68 (1991).
To the extent that Leigh is arguing that the Court of Appealsâ review of his Confrontation
Clause claim was unconstitutional, that claim also fails. The record reveals that the Court of
Appeals properly identified the Confrontation Clause as a separate constitutional issue from
whether Willliamsâ testimony was admissible under the Ohio evidence rules and identified
Crawford as the controlling Supreme Court authority. (Id. at PageID# 242). For federal habeas
relief, Leigh is required to identify a conclusion from the Court of Appealsâ opinion that is contrary
to or an unreasonable application of federal law. As discussed above, this standard has not been
met. Ground Six is without merit and should be dismissed.
In Ground Seven, Leigh contends that the Court of Appeals analyzed his Confrontation
Clause claim incorrectly. (ECF No. 19 at PageID# 1396). Leigh describes the appropriate process
as:
When determining whether the introduction of the testimonial hearsay statements
of an unavailable witness violates a defendantâs confrontation clause rights, courts
must first assess their admissibility under the evidence rules, and then, if otherwise
admissible, separately determine whether their admission violates the constitutionâs
demands. Otherwise, the hearsay rule swallows the constitution protection.
(Id.). It is unclear exactly what Leigh is arguing in Ground Seven. To be sure, the Confrontation
clause is not triggered unless the testimony to be offered is hearsay. Crawford, 541 U.S. at 59. It
appears that Leigh takes issue with the sequence of the Court of Appealsâ opinion because it found
no Confrontation Clause violation before it concluded that the testimony was admissible under
Ohio Evid.R. 804(8)(1). But because the Court of Appeals determined that there was no error in
the trial courtâs handling of either issue, the ultimate conclusion was the same regardless of the
way the opinion was organized. As mentioned above, habeas relief requires a demonstration that
the Court of Appealsâ opinion was contrary to or an unreasonable application of the Confrontation
Clause or Crawford, which Leigh has not done. Ground Seven is without merit and should be
dismissed.
All three of Leighâs Confrontation Clause claims, Grounds Six, Seven, and Eight, lack
merit and should be dismissed.
C. Merits of Procedurally Defaulted Claims
The following procedurally defaulted claims alternatively lack merit:
i. Grounds One and Five
In Grounds One and Five, Leigh contends that there was insufficient evidence3 to convict
him of improperly discharging a firearm at or into a habitation, in violation of O.R.C.
§2923.16(A)(1), murder in violation of O.R.C. §2923.161, and involuntary manslaughter in
violation of O.R.C. § 2903.04(A). (ECF No. 1-1 at PageID# 9, 13).
Leigh specifically argues that the state offered no testimony that he knowingly discharged
a firearm into the house. (Id.). The Court of Appeals disagreed:
{¶ 24} âThe shooting of a gun in a place where there is a risk of injury to one or
more persons supports the inference that appellant acted knowingly.â State v.
Gregory, 90 Ohio App.3d 124, 131, 628 N.E.2d 86, 91 (12th Dist.1993). In this
case, the Stateâs evidence established that the shooter fired at least seven bullets
toward Mootyâs occupied residence. Five bullets struck the home and entered both
3 Because a âmanifest weight of the evidenceâ claim is not cognizable on federal habeas review, the Court will
assume Grounds One and Five are asserting the same sufficiency of evidence claims asserted in Leighâs appeal to the
Court of Appeals. See Hoffman v. Lazaroff, No. 18-3439, 2018 WL 5849894, at *3 (6th Cir. Sept. 17, 2018) (citing
Nash v. Eberlin, 258 F. Appâx 761, 764 n.4 (6th Cir. 2007)).
the first and second floors of the residence. Given the number of bullets fired, the
location from which they were shot, and the number and location of the bullet
strikes, the jury reasonably concluded that the shooter acted knowingly when firing
at Mootyâs residence.
{¶ 25} Finally, the State presented substantial circumstantial evidence that Leigh
was the shooter. Marrico testified that he was not friends with Leigh and had only
met him a couple of times. Marrico indicated that his communications with Leigh
mainly were through Facebook Messenger with Leigh using the profile name
âBrando So Humble.â
{¶ 26} Marrico described how on February 14, 2018, two days before the shooting,
Leigh had shown his 9 mm handgun to Marrico and Tillman, and Tillman had put
the gun in his pocket and left with it. Leigh, believing that Marrico had stolen the
gun, then sent Marrico a series of Facebook messages that Marrico interpreted as
warnings to return the weapon. Marrico also received several phone calls from
Brando So Humble that he did not answer. At 12:22 p.m. on February 15, the day
before the shooting, Marrico received a message from Leigh, saying âThis is the
last time Iâm telling you this You Gone Give me my sh*t or do you really want to
go thru this.â He received another similar message 26 minutes later. Then, a couple
of minutes later, Leigh sent a message saying, âIght Bet.â After a few additional
messages where Leigh asked Marrico where he was, Leigh wrote, âBut just to tell
this really the last time I'm asking you So * * * You Donât Tell me Nun in like an
hour itâs over * * *.â At 3:14 p.m., Leigh sent a final message to Marrico saying
âBet.â
{¶ 27} Detective Farkas testified about additional Facebook conversations between
Leigh (âBrando So Humbleâ) and (1) Tillman (âLilreef Ah Realviewboyâ); (2)
Leighâs sister, Brittany Leigh (âJai Beeâ); (3) Gabrielle Marzhaka (âLightBright
Gabbyâ); (4) an unidentified person who used the profile name âYpn Prince;â (5)
an unidentified person who used the profile name âShamica Mariee;â (6) an
unidentified person who used the profile name âSemaj Hall;â (7) Sir Christion
Rogers (âSir Christion Rogersâ); and Theodore Shavers (âNlmb Msrmarâ).
Detective Farkas created a timeline of the various communications, reflecting
Leighâs statements that Marrico robbed him of a gun, his efforts to get Marrico to
return it, and Leighâs efforts to find Marrico. At 12:40 p.m. on February 15, Leigh
sent a message to Semaj Hall, saying âI need some bullets, some sh*t happened last
night.â Less than an hour later, Leighâs sister asked Leigh if he âwant[ed] the house
sprayed with ks [AK-47s or the like]â and she would buy him a gun later. Leigh
later told Ypn Prince that he was robbed by Marrico. At 1:13 p.m. on February 16,
Leigh wrote to Shavers to bring him a gun (âpoleâ). After February 16, Leighâs
account did not include references to Marrico or getting his gun back.
{¶ 28} Angela Williams also testified about incriminating statements that Leigh
made. Prior to the shooting, Williams heard Leigh say that one of his friends had
taken his pistol and he needed to get it back. The next day, Williams heard Leigh
talking with his sister about meeting up to get another gun, which he needed to âget
his sh*t back.â A few days after the shooting, Williams saw information about it on
Facebook. Williams testified that Leigh âcame up and told [her]â that he was
involved. She elaborated: âHe walked up to me, he said, Auntie you â did you hear
about what happened? I said, what you talking about? He said, the shooting. I said
where, in Westwood, that girl that was pregnant? He said, yeah. He said â I said,
why you have something to do with that? He said, what you mean I have something
to do with it? I did it.â
{¶ 29} During the afternoon of February 23, 2018, Lee, Leigh and Bobby Hunter
saw a person who looked like a detective drive by Leeâs house in a truck. Lee heard
Leigh say, âI'm about to go to jail.â Later that day, Leigh was arrested for the
shooting.
(ECF No. 10 at PageID# 222-223). The Court of Appeals acknowledged that Leigh testified that
he was not the shooter and denied sending the Facebook messages but found that it was the
province of the jury to assess the credibility of witnesses and resolve conflicts in the evidence. (Id.
at PageID# 225). The Court of Appeals concluded that the state presented sufficient evidence to
sustain Leighâs convictions. (Id.).
The well-settled standard of review for evaluating the merits of constitutional claims
challenging the sufficiency of the evidence was established by the Supreme Court in Jackson v.
Virginia, 443 U.S. 307 (1979). The Supreme Court held in Jackson, because the Due Process
Clause requires the state to prove beyond a reasonable doubt every fact necessary to constitute the
charged offense, âthe relevant questionâ in assessing the sufficiency of the evidence âis whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.â Jackson, 443
U.S. at 319 (emphasis in original).âŻâŻâŻâŻ
Under the Jackson standard, the state need not rule out every hypothesis except that of guilt
beyond a reasonable doubt. Id. at 326. Rather, âa federal habeas corpus court faced with a record
of historical facts that supports conflicting inferences must presumeâeven if it does not
affirmatively appear in the recordâthat the trier of fact resolved any such conflicts in favor of the
prosecution and must defer to that resolution.â Id.; Walker v. Engle, 703 F.2d 959, 969â70 (6th
Cir. 1983). It is the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the
evidence and to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319.
Consequently, the reviewing court is not permitted to reweigh the evidence, reevaluate the
credibility of witnesses, make its own subjective determination of guilt or innocence, or otherwise
substitute its opinion for that of the jury. See id. at 318â19 & n.13; United States v. Fisher, 648
F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)).
Federal habeas review of a claim challenging the sufficiency of the evidence is even further
limited. As the Sixth Circuit explained in Brown, the federal habeas court is âbound by two layers
of deference to groups who might view facts differently than [the habeas court] would.â 567 F.3d
at 205. The federal habeas court must defer not only to the trier of factâs findings as required by
Jackson, but under 28 U.S.C. § 2254(d), must also âdefer to the state appellate courtâs sufficiency
determination as long as it is not unreasonable.â Id. (emphasis in original); Davis v. Lafler, 658
F.3d 525, 531 (6th Cir. 2011). The Sixth Circuit went on to emphasize in Brown:
[W]e cannot rely simply upon our own personal conceptions of what
evidentiary showings would be sufficient to convince us of the
petitionerâs guilt. We cannot even inquire whether any rational trier
of fact would conclude that petitioner...is guilty of the offenses for
which he was charged. Instead, we must determine whether the Ohio
Court of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find [the petitioner] guilty beyond a
reasonable doubt based on the evidence introduced at trial.âŻâŻâŻâŻ
567 F.3d at 205 (emphasis in original).âŻâŻ
Leighâs sufficiency of evidence claims ask the Court to credit his testimony over the
competing testimony and evidence offered by the state. The Court is required to defer to the juryâs
resolution of conflicts in the evidence. Jackson, 443 U.S. at 326. The Court also is not permitted
to substitute a different interpretation of the evidence when federal habeas review requires the
Court to defer to the Court of Appealsâ reasonable determination that the evidence was sufficient.
Brown, 567 F.3d at 205. Grounds One and Five are meritless.
ii. Ground Two
In Ground Two, Leigh contends that the trial court committed reversible error by admitting
the Facebook messages. (ECF No. 1-1 at PageID# 10). Respondent argues that issues concerning
the admissibility of evidence are not cognizable on federal habeas review. (ECF No. 20 at PageID#
1424-1425).
During Leighâs trial, the prosecution relied on Facebook messages from an account
associated with Leigh under the handle, âBrando so Humble.â (ECF No. 10-3 at PageID# 860).
The prosecution also introduced Facebook messages from Marrico Murray, who testified to their
content. (Id. at PageID# 810-825). Murray identified Leigh as the person he communicated with
through Facebook messages under handle âBrando so Humble,â both in text messages and over
voice calls. (Id. at PageID# 800-802, 806-825).
Through Detective Zachary Farkas, the state introduced messages from Shareef Tillman
(âLittle Reefâ), Shuking Jones (âShakahâ), and Gabrielle Marzhuka (âLight Bright Gabbyâ) (ECF
No. 10-4 at PageID# 1058). Detective Farkas testified that he received the records from Facebook
through a warrant. (Id.) He also testified that he was familiar with the slang used in the messages
and interpreted them for the jury. (Id. at PageID# 1060, 1067-1082, 1107-1145).
Before trial, Leighâs counsel moved in limine to exclude the messages, arguing that the
accounts lacked proper authentication. (ECF No. 10 at PageID# 39-40). The trial court reserved
ruling until the relevant testimony, but over the defenseâs objection, ultimately ruled that the
prosecution laid a proper foundation. (ECF No. 10-2 at PageID# 639, ECF No. 10-3 at PageID#
800, ECF No. 10-4 at PageID# 1065-1066).
Discussed in Grounds One and Five, above, the messages included demands from Leigh to
Murray to return his âshit,â which Murray interpreted to be the gun, and the messages also included
threats when Murray failed to respond. (ECF No. 10 at PageID# 222-223). The messages from the
other accounts corroborated the stateâs theory that Murray stole Leighâs gun, and he tried to get
Murray to return it. (ECF No. 10-4 at PageID# 1070-1080, 1122-1136). There was also a message
between Leigh and his sister, that Detective Farkas interpreted as asking whether Leigh wanted a
house sprayed with bullets. (Id. at PageID# 1141).
The Court of Appeals found that the Facebook messages were properly admitted under
Ohioâs evidence rules. (ECF No. 10 at PageID# 226-230). The Court of Appeals described the
evidence of authentication as âample,â pointing to the warrant served on Facebook, the partiesâ
stipulation that the email account associated with the âBrando So Humbleâ Facebook account was
brandonleigh* âą *@* * *.com, and the testimony of Marrico Murray. (Id.). The Court of Appeals
also concluded that certain messages objected to by Leigh were not hearsay, but party opponent
admissions under Ohio Evid. R. 801(D)(2)(a). (Id. at PageID# 229-230).
To the extent Leigh argues that this ruling is an incorrect interpretation of Ohio law, the
claim is non-cognizable in federal habeas review. The extraordinary remedy of habeas corpus lies
only for a violation of the United States Constitution. 28 U.S.C. § 2254(a). As the Supreme Court
explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly
admitted or improperly excluded under state law âis no part of the federal courtâs habeas review
of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court
determinations on state-law questions.â Id. at 67â68. Rather, â[i]n conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties
of the United States.â Id. at 68. State courts are the final arbiters of state law, and the federal courts
will not intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
To the extent that Ground Two could be interpreted as an argument that the introduction
of the Facebook messages violated due process, that argument also fails. To obtain habeas relief
based on an allegedly improper evidentiary ruling, a petitioner must identify a Supreme Court case
establishing a due process right with regard to the specific kind of evidence at issue. Stewart v.
Winn, 967 F.3d 534, 538 (6th Cir. 2020). Leigh fails to identify any clearly established Supreme
Court precedent that would preclude admission of the Facebook messages. Moreover, considering
that the Court of Appeals concluded that the evidence was properly admitted, Leigh fails to
demonstrate that his trial was fundamentally unfair.4 Ground Two should be dismissed for lack of
merit.
iii. Ground Three
In Ground Three, Leigh contends that his trial counsel was ineffective for failing to object
to the authentication of the audio tape of Angela Williamsâ testimony, a prejudicial juror, and
âother actsâ evidence. (ECF No. 1-1 at PageID# 11).
âIn all criminal prosecutions,â the Sixth Amendment affords âthe accused...the right...to
Assistance of Counsel for his defence.â U.S. CONST. amend. VI. âOnly a right to âeffective
assistance of counselâ serves the guarantee.â Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)
(citation omitted). The United States Supreme Court set forth the legal principles governing claims
of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To establish
4 Although Leigh testified at trial that the messages were not sent by him, he offers no proof, by clear and
convincing evidence, that the state courtsâ conclusion that the messages were authentic was erroneous. See 28 U.S.C.
§ 2254(e)(1).
ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis
v. Thompkins, 560 U.S. 370, 389 (2010). As to the first prong of the Strickland test, the Supreme
Court has commanded:
Judicial scrutiny of counselâs performance must be highly
deferential.... A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counselâs challenged
conduct, and to evaluate the conduct from counselâs perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counselâs
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action âmight be
considered sound trial strategy.â
Strickland, 466 U.S. at 689.âŻ
As to the second prong, the Supreme Court held: âThe defendant must show that there is
a reasonable probability that, but for counselâs unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to overcome
confidence in the outcome.â Id. at 694.
When an exhausted claim of ineffective assistance of trial counsel is raised in a federal
habeas petition, review under AEDPA is âdoubly deferential.â Knowles v. Mirzayance, 556 U.S.
111, 123 (2009). That is, âStrickland requires deference to counsel and AEDPA requires deference
to the state court.â Moody v. Parris, No. 20-5299, 2022 WL 3788503, at *4 (6th Cir. Aug. 30,
2022). The question then is not whether trial counsel was ineffective, but âwhether the state courtâs
application of the Strickland standard was unreasonable.â Harrington, 562 U.S. at 101. The
Supreme Court clarified the double deference that is due:
This is different from asking whether defense counselâs
performance fell below Stricklandâs standard. Were that the
inquiry, the analysis would be no different than if, for example, this
Court were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are
different. For purposes of § 2254(d)(1), an unreasonable application
of federal law is different from an incorrect application of federal
law. A state court must be granted a deference and latitude that are
not in operation when the case involves review under
the Strickland standard itself.
Id. (internal citation omitted).
On direct appeal, Leigh challenged the authenticity of the audio recording of Angela
Williamsâ testimony. (ECF No. 10 at PageID# 235-237). The Court of Appeals reviewed the claim
for plain error because Leighâs trial counsel failed to object (id. at PageID# 236-237) and found
that Leighâs argument lacked a factual basis:
{¶71} In this case, the recording itself (Stateâs Exhibit 99) leaves little doubt that it
reflects Williamsâs probable cause hearing testimony. Although the trial court
ordered that the juvenile court judgeâs preliminary statements not be played for the
jury, the recording begins with the judge identifying himself, calling the case,
indicating what proceedings were occurring, and identifying who was present in
that courtroom. There is nothing to suggest that the recording is not what it purports
to be. In the absence of an objection, we find no plain error in the trial courtâs
admission of Williams's probable cause hearing testimony.
***
{¶102} With respect to defense counselâs failure to object to the lack of
authentication of the probable cause hearing audio-recording and the admission of
Facebook messages with other act evidence, we likewise conclude that Leighâs
claims lack merit. Although the State did not offer any evidence to authenticate the
audio recording of Williamsâs probable cause hearing testimony, there is no
indication that the recording was not authentic, and defense counsel, in his
professional judgment, could have opted not to raise the issue. Moreover, even if
defense counsel had objected to the lack of authentication before the recording was
played at trial, the recording would not necessarily have been excluded from
evidence. Rather, the State would have had an opportunity to authenticate the
exhibit prior to playing it for the jury.
(Id. at PageID# 237). Leigh has failed to demonstrate by clear and convincing evidence that the
recording of Angela Williamsâ testimony lacks authenticity. See 28 U.S.C. § 2254(e)(1) (â...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.â). Leigh cannot show either that his trial counsel was deficient for failing to object or
that he was prejudiced, and this part of Ground Three fails both prongs of the Strickland test.
Next, Leigh faults his trial counsel for failing to object to a prejudicial juror. In his direct
appeal, Leigh argued that his counsel should have stricken Juror #15 because the juror disclosed
that he was the victim of a drive-by-shooting. (ECF No. 10 at PageID# 245-248).
[PROSECUTOR]: Let me ask you this; how long ago was that?
[JUROR #15]: About a year ago.
[PROSECUTOR]: Okay. Is that case being prosecuted, if you know?
[JUROR #15]: No, sir.
[PROSECUTOR]: Okay. Now, Iâve talked about the fact that one of the charges
in this case is firing or the improper discharge of a firearm
into a habitation. And it sounds like that case, and I donât
know the facts of the case that youâre talking about, but it
sounds like it may be a similar, I donât know, factual
situation where a firearm was involved at least. Knowing
that, and knowing that you may hear evidence thatâs similar
in nature, at least to some degree, will you be able to set aside
the case that youâre talking about, albeit, a year ago, and
judge this case only on the evidence in court?
[JUROR #15]: Yes, sir.
[PROSECUTOR]: In other words, what we want to find out, kind of on the flip
side of things is, because you had that terrible event happen
that youâre not going to say, you know what, I'm going to
make sure that someone pays, okay, I donât care what the
evidence is, all right. And that youâll actually sit and listen
and judge the case on the evidence. That youâre not going to
be predisposed, for instance, to find someone guilty because
of a situation in your past. It sounds like you donât have
problem with that though?
[JUROR #15]: Thatâs correct.
[PROSECUTOR]: Okay. You'll be able to be fair and impartial?
[JUROR #15]: Yes, sir.
[PROSECUTOR]: Okay. I appreciate your candor. * * *
(ECF No. 27-2 at PageID# 1585-1586).
The Court of Appeals concluded, â[g]iven Juror #15âs answers during voir dire, defense
counsel could have reasonably concluded that he had no basis to seek Juror #15âs removal for
cause.â (ECF No. 10 at PageID# 247). And â[w]hile one might question why defense counsel
elected to use peremptory challenges on other individuals rather than Juror #15, defense counselâs
decision was within the realm of trial strategy, which we will not second-guess.â Id. at 248. The
Court of Appeals found that that there was no âreasonable probability that the outcome of the trial
would have been different had defense counsel made different decisions during jury selection.â
(Id.).
In his motion for reconsideration, Leigh advanced an additional argument that he was
denied a fair trial because the juror suffered from implied bias. (Id. at PageID# 332-340). The
Court of Appeals rejected this argument, too, and found that the motion was untimely. The court
also found that the federal construct of âimplied juror biasâ was codified in Ohioâs âfor causeâ
challenges under Ohio Crim. R. 24(C) and O.R.C. § 2945.25 and there was no error in the courtâs
original opinion that Leighâs counsel was not ineffective for failing to challenge Juror #15. (Id. at
PageID# 360).
The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain
extreme or exceptional cases, courts should employ a conclusive presumption that a juror is biased.
United States v. Frost, 125 F.3d 346, 379 (6th Cir. 1997) (citations omitted). A finding of implied
bias is appropriate only âwhere the relationship between a prospective juror and some aspect of
the litigation is such that it is highly unlikely that the average person could remain impartial in his
deliberations under the circumstances.â Pers. v. Miller, 854 F.2d 656, 664 (4th Cir. 1988).
At any rate, Leigh has asserted an ineffective assistance of counsel claim. When a
defendant bases an ineffective assistance claim on an assertion that his counsel allowed the seating
of a biased juror, the defendant âmust show that the juror was actually biased against him.â
(emphasis added). Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001) (citing Hughes v. United
States, 258 F.3d 453, 458 (6th Cir. 2001)).
The Court of Appeals concluded that Juror #15 âgave no indication that he would be
predisposed to find Leigh guilty based on the drive-by-shooting of his house in Denver.â (ECF
No. 10 at PageID# 247). This Court, sitting in federal habeas review, is bound to defer to that
conclusion. See Anes v. Jackson, No. 17-1920, 2018 WL 741696, at *3 (6th Cir. Jan. 4, 2018) (âa
state courtâs finding regarding a jurorâs impartiality is presumptively correct under 28 U.S.C. §
2254(d)â). This Court is also bound to defer to the Court of Appealsâ conclusion that Leighâs
counsel was not ineffective for failing to strike Juror #15.
Lastly, Leigh argues that his counsel was ineffective for failing to object to the admission
of âother crimesâ evidence included in the Facebook messages. The Court of Appeals concluded
that Leighâs âcounsel did not act deficiently in failing to object to those messages under Ohio Evid.
R. 404(B) and O.R.C. § 2945.59â because the trial court did not err in admitting the messages into
evidence. (ECF No. 10 at PageID# 248). Because the evidence was admissible under Ohio law,
this part of Ground Three fails both prongs of the Strickland test.
Ground Three, including all sub-parts, lacks merit.
iv. Ground Four
In Ground Four, Leigh contends that he is entitled to habeas relief on grounds of cumulative
error. (ECF No. 1-1 at PageID# 12). Respondent argues that Ground Four is non-cognizable in
federal habeas review. (ECF No. 20 at PageID# 1426). The Court agrees. Claims of cumulative
error do not demonstrate a constitutional claim in a habeas case. See Sheppard v. Bagley, 657 F.3d
338, 348 (6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)).
v. Ground Nine
In Ground Nine, Leigh asserts a trial court error of implied juror bias. (ECF No. 19 at
PageID# 1398). Like his argument in Ground Three, Leigh argues that he was denied a fair trial
because Juror #15 admitted during voir dire that he had been a victim of a drive-by-shooting. The
Sixth Circuit has rejected a similar implied juror bias claims on federal habeas review:
This court has expressed some doubt about the doctrinal viability of
imputing juror bias, Treesh v. Bagley, 612 F.3d 424, 437 (6th Cir.
2010), going as far as to hold that Smith is not clearly established for
AEDPA purposes, Cutts v. Smith, 630 Fed.Appx. 505, 509 (6th Cir.
2015). Even if Smith was clearly established, it is clearly inapposite.
Smith involved compromising information about a particular juror
that was not subject to questioning in voir dire, unlike in this case.
Smith, 455 U. S. at 212â13 (majority opinion). In addition, Smith
effectively rejected the argument that bias should be imputed or
implied based only on circumstances suggesting possible bias that
were adequately probed during voir dire, notwithstanding a jurorâs
testimony that he or she could remain impartial, without some other
evidence to support an allegation of bias. See id. at 215â17. Finally,
Smith also emphasized that, in habeas proceedings, a state courtâs
finding regarding a jurorâs impartiality is presumptively correct
under 28 U.S.C. § 2254(d). Id. at 218.
Anes v. Jackson, No. 17-1920, 2018 WL 741696, at *3 (6th Cir. Jan. 4, 2018).
Assuming Smith is clearly established, Leigh is not entitled to habeas relief. Juror #15 was
subjected to voir dire questioning about his potential bias and Leigh has offered no other evidence
of Juror #15âs bias that would contradict his responses. Critically, Juror #15 lacks the close ties to
the case required to prove implied bias. See Smith, 455 U.S. at 222 (OâConnor, J., concurring)
(ââŠthat the juror is an actual employee of the prosecuting agency, that the juror is a close relative
of one of the participants in the trial or the criminal transaction, or that the juror was a witness or
somehow involved in the criminal transaction.â). Finally, as noted in Ground Three, this Court is
bound to defer to the Court of Appealsâ conclusion that Juror #15 âgave no indication that he
would be predisposed to find Leigh guilty based on the drive-by-shooting of his house in Denver.â
(ECF No. 10 at PageID# 247). See also Anes, 2018 WL 741696, at *3. Ground Nine is without
merit.
vi. Ground Ten
In Ground Ten, Leigh contends that his Fourth Amendment rights were violated by a
warrantless arrest. (ECF No. 19 at PageID# 1399-1400). The Respondent argues that Ground Ten
is non-cognizable in federal habeas review. (ECF No. 20 at PageID# 1432). The Court agrees.
â[W]here the State has provided an opportunity for a full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure was introduced at his trial.â Stone
v. Powell, 428 U.S. 465, 482 (1976). Clearly established precedent explains, Powellâs
ââopportunity for full and fair considerationâ means an available avenue for the prisoner to present
his claim to the state courts, not an inquiry into the adequacy of the procedure actually used to
resolve that particular claim.â Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013). Consequently,
â[i]n the absence of a sham proceeding, there is no need to ask whether the state court conducted
an evidentiary hearing or to inquire otherwise into the rigor of the state judiciaryâs procedures for
resolving the claim.â Id.âŻ
The only relevant question for this federal habeas Court is whether Leigh was given a
chance to present his Fourth Amendment claim to the Ohio state courts. There is no indication in
the state court record that Leigh was prevented from raising a Fourth Amendment claim to the
Ohio trial or appellate courts. Leigh was not denied an opportunity to present his claim in state
court and as a result, his Fourth Amendment claim is not cognizable in habeas corpus and lacks
merit.
V. CONCLUSION
Leighâs claims are without merit. It is therefore RECOMMENDED that the habeas
petition be DENIED, and this action be DISMISSED WITH PREJUDICE.
For the foregoing reasons, the Undersigned RECOMMENDS:
1. Petitionerâs petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1-
1, 19) be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the petition because petitioner
has not stated a âviable claim of the denial of a constitutional rightâ or presented an issue
that is âadequate to deserve encouragement to proceed further.â See Slack v. McDaniel,
529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. With respect to any application by a petitioner to proceed on appeal in forma pauperis, the
Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order
adopting this Report and Recommendation would not be taken in âgood faith,â and
therefore DENY Petitioner leave to appeal in forma pauperis upon a showing of financial
necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.
1997).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are further advised that,
if they intend to file an appeal of any adverse decision, they may submit arguments in any
objections filed, regarding whether a certificate of appealability should issue.
IT IS SO RECOMMENDED.
October 17, 2025 s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
UNITED STATES MAGISTRATE JUDGE Case Information
- Court
- S.D. Ohio
- Decision Date
- October 17, 2025
- Status
- Precedential