Petitioner was indicted on March 23, 2015, by a Hamilton County grand jury on one count of aggravated vehicular homicide in violation of Ohio Revised Code § 2903.06(A)(2)(a) (Count 1), one count of vehicular homicide in violation of Ohio Revised Code § 2903.06(A)(3)(a) (Count 2), and one count of failure to stop after an accident in violation of Ohio Revised Code § 4549.02(A) (Count 3). (Indictment, State Court Record, ECF No. 6, Ex. 1). Lacking success on his motion to suppress, Dangerfield tried the case to a jury, but was convicted on all counts. Prior to sentencing, the trial court heard and overruled a motion for new trial. The court merged the vehicular homicide counts under Ohio Revised Code § 2941.25 and sentenced Dangerfield to eight years on the vehicular homicide convictions and three consecutive years on the hit-and-run conviction. Id. at Ex. 4.
Dangerfield appealed to the Ohio First District Court of Appeals which affirmed the conviction June 29, 2014 (Judgment Entry, State Court Record, ECF No. 6, Ex. 11). On further appeal, the Supreme Court of Ohio declined to exercise jurisdiction. Id. at Ex. 14. Raising claims of ineffective assistance of appellate counsel, Dangerfield filed an Application for Reopening under Ohio R. App. P. 26(B) which was denied by the First District February 27, 2020. Id. at Ex. 161.
Dangerfield filed the instant habeas corpus Petition on July 22, 2020, pleading the following grounds for relief:
Ground One: The photo array was suggestive and tainted the identification testimony of Dennis Medley, thus it was error to deny the motion to suppress.
Supporting Facts: The photo array contained 8 photographs of non-white males. Six of the 8 individuals were dark skinned, and only two had light skin. Only two had beards that were full, and 1 of the 2 individuals with a full beard was dark skinned. This unfairly narrowed the witnesses to select Mr. Dangerfield the only individual already known to the witnesses to select Mr. Dangerfield's gray beard, a head covering, and being light skinned. The trial court erred in holding that the photo array was not suggestive.
Ground Two: Mr. Dangerfield [sic] conviction for aggravated vehicle homicide is not supported by sufficient evidence.
Supporting Facts: The State of Ohio did not prove every element of Agravated [sic] Vehicle Homicide beyond a reasonable doubt.
Ground Three: Petitioner's Fifth Amendment Right of the U.S. Constitution was violated.
Ground Three: Petitioner's Fifth Amendment Right of the U.S. Constitution was violated.
Supporting Facts: The trial court nor prosecutor told the jury to disregard the repeated references to Mr. Dangerfield "lawyering up."
Ground Four: Petitioner was deprived of his right to effective assistance [sic] trial counsel.
Supporting Facts: Trial counsel was deficient in failing to object to, inter alia, the trial court's curative institution and to a suggestion of the prosecutor during voir dire that alcohol was involved in this case, where there was no evidence of alcohol consumption.
Ground Five: Appellate Counsel was deficient when he failed to raise on direct appeal trial counsel's ineffectiveness in failing to effectively cross-examine and challenge procedure used to attach Petitioner to the offense.
Supporting Facts: Officer Jerry Lathery presented the photo array to Mr. Medley in a bundle. Mr. Medley, used the process of elimination and hesitantly choose Petitioner's photo. Mr. Medley testified that he was not 100% certain about his final selection. Trial failed in his duty to cross-examine Officer Jerry Lathery and others thoroughly as to how Mr. Medley later made an in court identification of Petitioner. Had trial counsel thoroughly crossed examined officers, the full suggestive nature of the police tactics would have been exposed.
(Petition, ECF No. 1).
The First District Court of Appeals found the following facts regarding the crime in suit:
Just before 11:00 p.m., Dangerfield was driving his sister's silver BMW sedan north on Reading Road in the Bond Hill neighborhood of Cincinnati. While the posted speed limit was 30 m.p.h.,Dangerfield was traveling at between 59 and 72 m.p.h. His driver's license was suspended at the time.
Denson and two friends had just exited from a Metro bus and were attempting to cross Reading Road. Dangerfield struck Denson, tossing her into the air. The impact was captured on surveillance video from the bus and from a nearby apartment building. Her body was thrown 250 feet. She died within minutes.
Dennis Medley, Jr., the owner of an auto repair shop, was driving south on Reading Road at the same time and observed a heavily damaged silver BMW, streaming coolant from its radiator, driving north. The front windshield was heavily cracked.
Medley observed the driver as the cars passed. Medley called 911 and described the driver as "a black male with a beanie on his head * * * [h]air on his face," and distinctive eyes and nose. Medley subsequently picked Dangerfield's photo out of an eight-image police photo lineup and identified Dangerfield as the driver during trial.
The bumper of the BMW, bearing the front license plate, was torn off of the vehicle by the impact with Denson's body. In response to a radio call which included the make and model of the car, its license number, and a description of the driver as a "Male black with a light-colored head covering, like a beanie-type covering," Cincinnati police officers quickly located the vehicle at 1663 Rose Place, about two miles from where Denson had been killed. Dangerfield lived there with his sister.
Dangerfield and several others were standing in front of the vehicle. The group retreated to the house. Dangerfield was coaxed from the house and taken for questioning. Police took a photo of him showing his wide nose and graying beard. He was wearing a cream-colored kufi, or brimless, rounded cap, and had a cut on the center of his forehead. Dangerfield asked for an attorney and questioning ceased.
Denson's blood was found on the silver BMW in Dangerfield's driveway.
(Judgment Entry, State Court Record, ECF No. 6, Ex. 11, PageID 98-99).
Ground One: Suggestive Pre-Trial Identification In his First Ground for Relief, Petitioner claims a suggestive pre-trial photo array tainted the in-court identification of witness Dennis Medley and he was thereby deprived of his right to due process of law. Respondent defends this Ground for Relief on the merits (Return of Writ, ECF No. 7, PageID 1299-1306). Petitioner recounts motion to suppress and trial testimony at length (Traverse, ECF No. 8, PageID 1327-45). He then claims the First District's decision on this Ground for Relief is an unreasonable application of relevant Supreme Court precedent, particularly Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114 (1977)(Traverse, ECF No. 8, PageID 1348).
Dangerfield presented this claim to the First District as his first assignment of error and the First District decided it as follows:
In his first assignment of error, Dangerfield claims that the trial court erred in denying his motion to suppress Medley's photo-lineup identification of Dangerfield as the driver of the BMW. He claims the photo lineup was suggestive and tainted Medley's identification, and that, in denying the motion, the trial court did not consider the state's failure to fully comply with the provisions of R.C. 2933.83 during the photo lineup.
Our review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. We must accept the trial court's findings of fact if they are supported by competent and credible evidence, but we review de novo the trial court's application of the law to the relevant facts. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, 'II 8. A two-part test is utilized to determine whether an eyewitness identification must be suppressed. See State v. Neal, 1st Dist. Hamilton No. C-140667, 2015-Ohio-4705, 'II 28; see also Neil v. Biggers, 409 U.S. 188, 196-197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). First, the reviewing court mustdetermine whether the lineup procedure utilized was suggestive and unnecessary. Second, if the lineup is found to be suggestive and unnecessary, the court must determine whether the identification was reliable under the totality of the circumstances. Neal at ¶ 28; see State v. Brand, 1st Dist. Hamilton No. C-150590, 2016-Ohio-7456, ¶¶ 44-45.
Within a few days of the accident, Medley identified Dangerfield as the driver of the BMW from a photo lineup of eight photos of African-American men shown to him by a blind administrator, an officer not involved in the investigation. Each photo showed an African-American male with a beard and roughly similar features. The other seven photos had been selected from a computer database to match Dangerfield's characteristics. Medley was not told that the suspect's photo was in the lineup. The skin tone of the subjects varied, but the instructions had cautioned that "Photographs may not always depict the true complexion of a person. It may appear lighter or darker in the photograph." The
...
