from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:12-cv-00724-Michael R.
Merz, Magistrate Judge; Timothy S. Black, District Judge.
M. Laufman, LAUFMAN & NAPOLITANO, Cincinnati, Ohio, for
Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati,
Ohio, for Appellee.
Before: SUTTON, McKEAGUE, and DONALD, Circuit Judges.
SUTTON, Circuit Judge
murdered Michael Grace. An eyewitness identified Marty
Levingston as the assailant, or at least one of them. And a
jury convicted him. Levingston filed a habeas petition
claiming that the trial court allowed the jury to use the
eyewitness's testimony in violation of the Confrontation
Clause and the Due Process Clause. Because the Ohio courts
permissibly rejected those claims, we affirm.
than ten years ago, Savana Sorrells looked out of her
cousin's second-story apartment window. In a parking lot
across the street, she saw two men arguing. She knew both of
them-David Johnson and Michael Grace-from the neighborhood.
Johnson knocked Grace to the ground. Suddenly a third man,
Marty Levingston, whom she also knew from the neighborhood,
approached from the shadows. Although a car obstructed her
view of Grace's fallen body, Sorrells saw one thing:
Johnson and Levingston standing over him, followed by flashes
of fire coming from the guns in their hands. Sorrells heard
about ten shots. She never saw Grace fire a gun or move after
the shots were fired.
did not want to get involved at first. But her mother
convinced her it was the right thing to do. Ten days later,
she contacted the police and told them what she had seen.
Speaking with Detective Matt Thompson, Sorrells identified
Johnson and Levingston as the shooters and said she was
"[o]ne hundred percent" sure it was them. R. 10-10
at 43. Ten days after that, she told a grand jury the same
thing. Sorrells asked police to place her and her mother in a
witness protection program and move her to a different
school. The government charged Levingston with murder,
felonious assault, and tampering with evidence. Ohio Rev.
Code §§ 2903.02(A), 2903.11(A)(2), 2921.12(A)(1).
did not appear at a pre-trial hearing. Prosecutors tracked
her down, and Sorrells repeated that she was certain that she
saw Johnson and Levingston shoot Grace. But at the
rescheduled hearing in front of Levingston, Sorrells
equivocated. For the first time, she expressed doubt about
whether Levingston was one of the shooters. And for the first
time, she said she was not wearing her glasses or contacts
trial, the court called Sorrells as its own witness so that
both parties could cross-examine her. See Ohio R.
Evid. 614(A). During the government's cross-examination,
Sorrells said that she changed her testimony based on what
other people were telling her and admitted she was afraid
"of being contacted or influenced." R. 10-5 at 87.
During Levingston's cross-examination, Sorrells said that
she genuinely grew unsure over what she saw. Detective
Thompson testified about his interview with Sorrells and the
jury heard a recording of their conversation. The court
instructed the jury that it could consider Sorrells'
prior statements to the police and the grand jury "as
testified by her" only to impeach her credibility. R.
10-11 at 165. But it said the jury could consider the prior
statements and the recorded conversation through Detective
Thompson's testimony as substantive evidence of
Levingston's guilt under an exclusion to Ohio's
hearsay rule. See Ohio R. Evid. 801(D)(1)(c).
jury found Levingston guilty. He appealed, arguing that the
trial court violated his confrontation rights by instructing
the jury that it could consider Sorrells' earlier
statements as substantive evidence. The Ohio Court of Appeals
rejected this argument and some others as well. State v.
Levingston, 2011 WL 1331883 (Ohio Ct. App. Apr. 8,
2011). The Ohio Supreme Court declined to hear the appeal.
State v. Levingston, 953 N.E.2d 843 (Ohio 2011)
filed a federal habeas petition. The district court stayed
the action to permit Levingston to exhaust his
post-conviction remedies under Ohio law. In his
post-conviction petition, Levingston argued that, when the
trial court allowed the government to use Sorrells'
statements as substantive evidence, it violated his right to
confront the witnesses against him under the Sixth and
Fourteenth Amendments and his right to due process under the
Fifth and Fourteenth Amendments. The trial court denied his
claims. The Ohio Court of Appeals rejected the petition as
procedurally barred, and the Ohio Supreme Court again
declined to hear the appeal.
district court rejected the habeas petition and granted
Levingston a certificate of ...