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Levingston v. Warden, Warren Correctional Institution

United States Court of Appeals, Sixth Circuit

May 30, 2018

Marty Levingston, Petitioner-Appellant,
v.
Warden, Warren Correctional Institution, Respondent-Appellee.

          Appeal 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.

         ON BRIEF:

          Paul M. Laufman, LAUFMAN & NAPOLITANO, Cincinnati, Ohio, for Appellant.

          Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.

          Before: SUTTON, McKEAGUE, and DONALD, Circuit Judges.

          OPINION

          SUTTON, Circuit Judge

         Someone 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.

         More 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.

         Sorrells 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).

         Sorrells 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 that night.

         At 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).

         The 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) (mem.).

         Levingston 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.

         The district court rejected the habeas petition and granted Levingston a certificate of ...


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