1:25-cv-00226•Newberry v. Mackey
Gesamter Gesetzestext
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION RONALD NEWBERRY, Petitioner, vs. WARDEN MISTY MACKEY, Respondent. CASE NO. 1:25-cv-226 DISTRICT JUDGE DAVID A. RUIZ MAGISTRATE JUDGE JAMES E. GRIMES JR. REPORT & RECOMMENDATION Petitioner Ronald Newberry has filed an Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Newberry is in custody at the Lake Erie Correctional Institution and challenges his conviction and sentence in the case State v. Newberry, Cuyahoga County Court of Common Pleas, Case No. CR-19-642539-A. The Court referred this matter to a Magistrate Judge under Local Rule 72.2 for the preparation of a Report and Recommendation. For the following reasons, I recommend that the Court deny Newberry’s Amended Petition. Summary of facts In habeas corpus proceedings brought by a person under 28 U.S.C. § 2254, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 1 of 92. PageID #: <pageID>
2
presumption by clear and convincing evidence. Franklin v. Bradshaw, 695 F.3d
439, 447 (6th Cir. 2012).
The Ohio Court of Appeals for the Eighth Appellate District summarized
the facts underlying Newberry’s conviction as follows:
{¶1} Defendant-appellant Ronald Newberry appeals
his convictions for aggravated murder, murder,
kidnapping, aggravated burglary, aggravated arson,
felonious assault and having weapons while under
disability following a jury trial in the Cuyahoga
County Court of Common Pleas. The charges
stemmed from an investigation into the deaths of
Paul Bradley (“Paul” or “Paul B.”) and his 14-year-
old daughter P.B. Paul and P.B. were found dead in
a burning car at a vacant property in East Cleveland
on October 10, 2018.
***
{¶4} On July 31, 2019, a Cuyahoga County Grand
Jury indicted Ronald Newberry and two
codefendants—Kodii Gibson and DeMarcus
Sheeley—in a fifteen-count indictment. [] The
indictment alleged that Newberry committed the
following offenses on or about October 10, 2018:
Counts 1 and 3: Aggravated murder of
P.B., in violation of R.C. 2903.01(A)
and (B)
Counts 2 and 4: Aggravated murder of
Paul B., in violation of R.C. 2903.01(A)
and (B)
Count 5: Kidnapping of P.B. in
violation of R.C. 2905.01(A)(3)
Count 6: Kidnapping of Paul B. in
violation of R.C. 2905.01(A)(3)
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Count 7: Aggravated burglary in
violation of R.C. 2911.11(A)(1)
Count 8: Aggravated arson in relation
to Paul B., in violation of R.C.
2909.02(A)(1)
Count 9: Aggravated arson in relation
to P.B., in violation of R.C.
2909.02(A)(1)
Count 10: Murder of P.B., in violation
of R.C. 2903.02(B)
Count 11: Felonious assault of P.B., in
violation of R.C. 2903.11(A)(1)
Count 12: Murder of Paul B., in
violation of R.C. 2903.02(B)
Count 13: Felonious assault of Paul B.,
in violation of R.C. 2903.11(A)
Count 14 did not apply to Newberry.
Count 15: Having weapons while under
disability, in violation of R.C.
2923.13(A)(3)
{¶5} Each of counts 1, 2, 3, 5, 6, 7, 10 and 11 carried
one- and three-year firearm specifications under
R.C. 2941.141(A) and 2941.145(A). Count 13 carried
an accelerant specification under R.C.
2941.1425(B). 2
[FN2] The indictment also included
capital specifications under R.C.
2929.04(A)(5) and 2929.04(A)(7) but
the state voluntarily dismissed those
specifications before trial.
{¶6} The prosecution’s theory of the case was that
Newberry, Gibson and Sheeley participated in a
“crime spree” on October 10, 2018, which culminated
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in the murders of Paul and P.B. They broke into
Paul’s house in Bedford and kept Paul and P.B.
detained there between 3 a.m. and 6 a.m. while they
ransacked the house and stole items of value. Then
they drove Paul and P.B.—in a silver Buick
LaCrosse that Paul was renting—to an abandoned
house on Wadena Avenue in East Cleveland and
kept them there for over two hours while Gibson
called his girlfriend to bring him a gasoline can and
while Gibson and Sheeley walked to a nearby gas
station, and back, to fill it up. Shortly after 9 a.m.,
they drove Paul and P.B.—again in Paul’s car—to a
vacant lot on Savannah Avenue in East Cleveland,
where they shot P.B. to death and burned Paul alive.
Newberry, Gibson and Sheeley used Newberry’s
car—which had been recently purchased in
Newberry’s mother’s name—throughout these
events. Newberry returned the car to the dealership
in an attempt to lose evidence and conceal his
involvement in the crime. When investigators
suspected Newberry’s involvement, he and his
mother created a fake person—“Jamaican Shawn”—
to conceal Newberry’s participation in the murders.
The state readily admitted that its case against
Newberry was circumstantial.
{¶7} The defense did not dispute that someone broke
into Paul B.’s house, robbed him, kidnapped both
him and his daughter and brutally murdered them.
The defense did not even dispute that Newberry’s
car was used in the commission of those offenses.
But the defense was adamant that Newberry was
not involved in those crimes. The defense argued to
the jury that Newberry routinely allowed others to
use his car and phones and said that all the
circumstantial evidence tying Newberry to the
murders was explained because Newberry allowed
others to use his car and phone at the time of the
crimes. Newberry voluntarily turned himself in,
spoke to the police and consented to the collection of
his DNA, all because he knew he did nothing wrong.
He returned his car because he knew his friends had
committed a crime in it.
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State v. Newberry, No. 111431, 2023 WL 6475159, at *1–2 (Ohio Ct. App. Oct.
5, 2023).
At his arraignment, Newberry appeared with retained counsel Carolyn
Ranke. Doc. 20-1, at 43 (Exhibit 8).1 In April 2021, about a year before trial,
Attorney Ranke filed a motion to withdraw as counsel because she had
discovered that a potential state witness was an existing client. Doc. 20-1, at
45 (Exhibit 9). The trial court granted the motion, id. at 47 (Exhibit 10), and
appointed for Newberry attorneys Kevin Spellacy and Walt Edwards, id. at
938 (Exhibit 44).
A jury trial began in early 2022. Doc. 20-2, at 33. The Ohio court of
appeals continued:
A. Voir Dire
{¶9} During voir dire, prospective juror No. 31
requested a sidebar conference and disclosed that
the juror’s daughter “is friends with the victim’s
daughter.” The juror reported that this fact would
not affect his ability to be fair and impartial. The
juror had not spoken with his daughter “for at least
four years.” Neither party moved to exclude juror
No. 31 and the juror served on the jury.
B. Waiver of Potential Conflict
{¶10} Before opening statements began on March 7,
2022, the trial court discussed several preliminary
matters with the parties including a potential
conflict that had been identified with respect to one
of the defense counsel.
{¶11} The prosecutor related to the court that the
state had “discussed several times off the record”
1 In this report and recommendation, all of the citations to the docket refer
to the ECF document and page number shown at the top of the page.
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with the defense that one of the defense attorneys
had previously represented Joseph D. Marché—an
East Cleveland police officer who was involved in the
investigation of the case as a detective—“and others
in East Cleveland.” The prosecutor noted that the
representation was in a civil case and requested
“that we go on the record and waive any potential
conflicts.”
{¶12} Defense counsel then explained that he
previously represented Marché and approximately
three other East Cleveland employees in “a civil
matter where * * * a citizen[ ] had brought an action
again[st] East Cleveland’s police department for not
being accredited, for not having their shooting
records in line or qualifying records, not having their
continuing education, things like that.” Counsel said
that he had filed a motion to withdraw in that
matter and the case was ultimately dismissed by the
trial court. Counsel stated that he did not recall ever
speaking with Marché about that civil case and
described that counsel’s role had been limited to
gathering records from state agencies and producing
those records to the trial court. Counsel then said as
follows:
Nothing about this case or any other
case, for that matter, was ever
discussed. I’ve other cases against the
Commander [Marché] where I’ve cross-
examined him. I have no problem doing
my job in this case. I didn’t learn
anything from that representation
about my client or any other client, for
that matter.
{¶13} Immediately after defense counsel’s
explanation, the trial court discussed the matter
with Newberry, as follows:
THE COURT: Mr. Newberry, is that
okay with you? After that’s all been
disclosed, are you okay?
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[NEWBERRY]: Yes.
{¶14} The trial court then asked counsel for the
parties if there was anything else they would like to
put on the record regarding the potential conflict
issue. Counsel had nothing further to say about it.
C. The State’s Case
{¶15} The state called nineteen witnesses in its case-
in-chief.
1. The Examination of John Hartman
{¶16} John Hartman testified that he is employed as
a police sergeant with the East Cleveland Police
Department. He said he has been a police officer in
East Cleveland for six years and was promoted to
the rank of sergeant in August 2021.
{¶17} Hartman was working as a patrol officer on
October 10, 2018. At around 9:30 a.m. that day, he
responded to a vacant field on Savannah Avenue in
East Cleveland regarding a report of a vehicle on
fire. As Hartman arrived, he saw a car on fire. The
fire department was already on scene and working
to extinguish the fire.
{¶18} Hartman and other officers who responded to
the scene that day wore city-issued body-worn
cameras. The state played a video recording from
one of those cameras. The video depicts a car parked
on a grassy lot between two houses. The car’s trunk
is partially open and flames stream from the vehicle.
Firefighters walk around the car, dousing the car
with water from a firehose.
{¶19} Hartman testified that one of the firefighters
notified him that there were two bodies inside the
vehicle. Hartman approached within three feet of
the car and smelled the odor of burnt flesh. He saw
two people in the back seat; they were both deceased
and “extremely burned.” He observed that both
people appeared to be bound at the wrists and “[i]t
looked like they were wrapped with cloth.” Hartman
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then notified his supervisors and began to “establish
the crime scene.”
2. The Examination of Jennifer Heard
{¶20} Jennifer Heard testified that she met Paul B.
in 2003 and they dated “on and off” from that point
forward. They have three children together. Paul
also had other children, including P.B., for whom
Heard is not the mother.
{¶21} Paul served a three-year sentence in federal
prison for drug trafficking. After Paul’s release from
prison, he and Heard lived together until 2018. They
bought a house on Gould Avenue in Bedford, Ohio in
2013 and Heard stayed there “on and off” over the
years. The house was a two-story, single-family
residence with a detached garage.
{¶22} Heard never knew Paul to hold a steady job
after his release from prison but he had money such
that he could pay for household expenses and basic
needs and provide for his children. He also liked to
go to the casino and often he would go seven days a
week. Paul gambled with large sums of money,
thousands of dollars at a time. Paul had over $5
million in receipts at the Jack Casino alone, owned
two properties and used at least two phones. She
said she believed Paul made his money through
gambling.
{¶23} In June 2018, Paul called Heard and asked her
to drive to meet him at a hotel in the Brecksville–
Broadview Heights area of Ohio. When she arrived,
Paul put a black duffle bag in the back of her car; the
bag was branded from the Jack Casino. Heard was
stopped by the Ohio State Highway Patrol on her
way home from the hotel. Troopers searched the bag,
finding that it contained approximately $345,000 in
cash. Heard and Paul never talked about why the
bag held that much cash.
{¶24} P.B. entered the ninth grade at school in
August 2018; she was living with Paul at the house
on Gould Avenue that fall.
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{¶25} In September and October 2018, Paul was
renting a Buick, which had out-of-state license
plates. It was his habit to rent cars, as opposed to
buying a vehicle, after his release from prison.
{¶26} Heard drove to the Gould Avenue house at
around 11:30 p.m. on October 9, 2018, to deliver P.B.
a bookbag that P.B. had left at a relative’s house the
weekend before. Heard parked in the driveway and
called Paul, who was home with P.B. at the time, and
P.B. came outside and grabbed the bag from Heard.
P.B. kissed Heard’s 16-month-old son, who was in
the car with Heard, then went back inside the house.
{¶27} Heard drove around the corner to Paul’s
sister’s house, where she stayed that night. She
woke up around 6:45 a.m. on October 10, 2018, and
called Paul’s and P.B.’s phones which they did not
answer. Later that morning she drove to the Gould
Avenue house and found that the street was blocked
off by emergency vehicles. She was informed that
Paul’s vehicle had been found, burned, in East
Cleveland and that Paul and P.B. had been found
deceased inside of it.
{¶28} Heard was allowed back inside the Gould
Avenue house on October 11, 2018. She found that
each floor of the home was “[r]ansacked.” She took
an inventory and reported to police that several
items of value were missing, including two
PlayStation videogame consoles and controllers, a
pair of burgundy shoes, a Ferragamo belt and Paul’s
earrings and watch. She identified a picture taken of
Paul’s son when he went to prom, which she said
depicts the son wearing the Ferragamo belt that was
taken.
{¶29} On cross-examination, Heard admitted that
she never saw Paul and Newberry together. She did
not know Newberry prior to this case and did not
know the extent of the relationship, if any, between
Paul and Newberry or the degree to which they ever
had contact.
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3. The Examination of Michael Griffis
{¶30} Michael Griffis testified that he is employed as
a police officer by the city of Solon and serves as a
narcotics detective with the Southeast Law
Enforcement (“SEALE”) narcotics task force. He
described SEALE as “a multi-jurisdictional task
force” that primarily investigates drug trafficking.
He testified to the following facts relevant to this
investigation.
{¶31} Before Paul B.’s death, law enforcement
officers suspected that he was involved in “heroin
trafficking.” In 2015, Griffis was involved in an
investigation targeting Paul; officers bought
approximately ten grams of heroin from Paul
through a confidential informant. That investigation
ended when the confidential informant stopped
cooperating.
{¶32} On cross-examination, Griffis admitted that
drug traffickers often use rental cars to hide their
identity and avoid forfeiture.
{¶33} On October 10, 2018, Griffis conducted a
welfare check at Paul B.’s house in the late morning
or early afternoon. He and another detective found
the rear door open. They entered the house and saw
a red liquid on the floor in several rooms. The odor
of gasoline was “really strong” so they backed out of
the house and contacted the gas and electric utility
companies and the fire department to make sure it
was safe for them to enter. The gas and electricity
services to the home were cut off for safety. Once the
house was rendered safe, Griffis and the other
detective went through the property and found no
one inside. The house looked like it had been
“tossed.”
4. The Examination of Christopher Wilson
{¶34} Christopher Wilson testified that in October
2018 he was employed as a special agent with the
Ohio Bureau of Criminal Investigation (“BCI”).
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{¶35} On October 10, 2018, Wilson responded to the
Savannah Avenue crime scene at approximately
11:48 a.m. to photograph the scene. He observed two
bodies in the back seat of the burned-out vehicle; the
victims appeared to have their hands bound. One
was positioned with the head facing the driver’s side
of the vehicle; the other was positioned behind the
first, with the head facing the passenger side. Wilson
observed a “pinkish liquid drip stain” on the outside
of the vehicle, near the gas tank.
{¶36} After photographing this scene, Wilson drove
to Paul B.’s home on Gould Avenue in Bedford to
take photographs and assist with the processing of
evidence there.
{¶37} There was a “strong chemical odor” when he
entered the home. There was a “reddish liquid” on
the “floor, furnishings, and household items
throughout the house”; the State Fire Marshal’s
Office collected samples of the liquid for testing as a
suspected accelerant. The house “appeared to have
been rummaged through.” In one of the bedrooms,
there were “drawers from the nightstand pulled out
and various household items strewn throughout the
floor.”
{¶38} There were stains on a wall and closet on the
first floor of the home that tested presumptively
positive for blood. There was a fragment of a blue
examination glove on the floor of the living room
near the blood stains; it appeared that the suspected
accelerant was on the glove.
{¶39} There were items “consistent with drug
activity” located in the basement, including blender
components, weights and a digital scale.
{¶40} BCI collected the items of physical evidence
identified as potentially relevant to the
investigation. BCI also collected “blind swabs” of
various surfaces at the home, to test for the
“presence of skin cells and potentially extract DNA
profiles from those skin cells.”
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5. The Examinations of Jeffrey Koehn and
Mollie Jordan
{¶41} Jeffrey Koehn testified that he has been
employed as a fire and explosion investigator by the
Ohio State Fire Marshal’s Office for twelve and a
half years. He said he was a firefighter and fire
investigator in Trumbull County for thirteen years
before joining the Fire Marshal’s Office and remains
a part-time firefighter in Geauga County. The state
offered Koehn as an expert in determining the origin
and cause of fires and explosions and the defense
stipulated to his qualifications.
{¶42} Mollie Jordan testified that she has been
employed by the State Fire Marshal’s forensic lab for
eleven years. The state offered her as an expert in
fire debris analysis and the defense stipulated to her
qualifications.
{¶43} Taken together, their testimony established
the following facts and conclusions relevant to this
investigation.
{¶44} Koehn was called to the Savannah Avenue
crime scene on October 10, 2018. He smelled the
odor of gasoline and “burnt flesh” while he was
processing the scene. The odor of gasoline was “very
strong,” such that one could smell it out to 20 feet
from the vehicle. “Depending how the wind blew,” he
said, “you could get it even further away.” Koehn
learned that the burned-out vehicle was registered
to a rental agency in Cleveland and that the vehicle
had been rented to Paul B.
{¶45} Koehn examined the vehicle at the scene and
later processed the vehicle for evidence at the
medical examiner’s office. A hole was found on the
underside of the vehicle, surrounded by a “red stain”;
this was later determined to be a bullet hole
surrounded by blood. Blood stains were also found in
the vehicle. Bullets and cartridge cases were found
on the passenger side in the rear seating
compartment. There was a “reddish pinkish liquid”
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on the outside of the vehicle on the rear passenger
side. Samples were taken from the interior of the
vehicle and from the clothing on Paul’s and P.B.’s
bodies and tested for gasoline.
{¶46} Jordan conducted forensic tests on these
samples. Every sample taken from inside of the
burned-out car tested positive for gasoline, including
samples taken from the clothes of the victims.
{¶47} Koehn’s expert conclusion was that the vehicle
fire was caused by a person who intentionally set fire
to the vehicle by applying an open flame—most
likely a lighter or a match—to gasoline, which had
been intentionally applied to the vehicle and the
victims. Koehn’s analysis of the scene led him to
conclude that the fire had spread from the front of
the car—where the fire had been hot enough to melt
the car’s windshield and aluminum hood—to the
rear. He also concluded that the fire spread from the
interior of the vehicle to the exterior.
{¶48} Later, Koehn examined the dark blue 2010
Ford Edge that Newberry had been using in October
2018. A trained accelerant-detecting dog alerted to
the exterior of the car and various places inside the
car. Koehn collected eight samples from the vehicle.
{¶49} Jordan conducted forensic tests on these
samples. A sample taken from the front driver’s seat
of Newberry’s car tested positive for gasoline, as did
a sample taken from the “rear carpet area” of his car.
A sample taken from plastic bubble wrap in
Newberry’s trunk tested positive for gasoline and
“medium petroleum distillate.” Medium petroleum
distillates include charcoal lighter fluid, paint
thinner and tiki torch fuel.
{¶50} On cross-examination, Koehn admitted that no
investigator tested the clothing of any living person
for the presence of accelerants. He further admitted
that he could not tell how much gasoline was present
in the Ford Edge; it is possible that there were only
“drops” of gasoline there. He further admitted that
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it is possible to transfer gasoline from one item to
another. He continued as follows:
DEFENSE COUNSEL: [I]f I cut lawns
for a living, right, and I’m pouring
gasoline into weed whackers, blowers,
lawnmowers, I get in my truck
everyday, am I going to have gasoline
on my seat?
A: It’s possible.
{¶51} Koehn said he was not able to say whether the
gasoline detected in the Ford Edge was “transfer
material.”
6. The Examinations of Joseph Stevens and
Christa Rajendram
{¶52} Joseph Stevens testified that he is employed as
a fire investigator for the State Fire Marshal’s office.
He said he has been in that role for seven years and
was employed as a firefighter for 20 years before
that. The state offered him as an expert in
determining the origin and cause of fires and the
defense stipulated to his qualifications.
{¶53} Christa Rajendram testified that she is
employed as a forensic lab supervisor by the State
Fire Marshal Forensic Lab. She said she has worked
at the lab for approximately 28 years, detecting and
analyzing ignitable liquids, among other things and
has a Ph.D. in chemistry. The state offered her as an
expert in the field of fire debris analysis and the
defense stipulated to her qualifications.
{¶54} Taken together, their testimony established
the following facts and conclusions relevant to this
investigation.
{¶55} Stevens responded to Paul B.’s Gould Avenue
home on October 10, 2018, after police officers
approaching the home “smelled the fumes from
ignitable liquid coming out of the house.” When he
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arrived, he also smelled “a distinct odor of gasoline”
at the house.
{¶56} Stevens walked through the home and saw a
“pinkish reddish” liquid throughout the house.
Stevens collected three samples of the liquid from
various places inside the home and submitted them
to a laboratory for identification.
{¶57} Rajendram forensically tested the samples
collected by Investigator Stevens from Paul B.’s
home. The red liquid on the samples was a mixture
of gasoline, a medium to heavy petroleum distillate
and a petroleum-based oil. Petroleum-based oils
include motor oil and transmission fluid.
{¶58} Stevens identified that there were a couple
pieces of paper in the basement of the home that
someone had twisted up, indicating that the person
intended to “control the burn of that particular piece
of paper.” His training told him that a person can
use a twisted piece of paper like he found “as a wick
or something to * * * initiate and ignite” a flammable
liquid. The “pinkish reddish” liquid that had been
found throughout the house was also found on these
two twisted pieces of paper.
{¶59} Through his examination, Stevens concluded
that a person or multiple people had poured an
ignitable liquid throughout the home, including in
the basement and on the first and second floors of
the home. Stevens found no fire damage inside the
house but he noted that there was a hot-water tank
and a furnace in the basement and a gas stove in the
kitchen, among other possible “ignition sources.” He
explained that the fumes from the ignitable mixture
poured throughout the house could have ignited
from these sources, like the pilot light of one of the
gas appliances.
{¶60} On cross-examination, Stevens admitted that
the wicks he found—the twisted pieces of paper—
had not been burned. He admitted that it did not
look like there had been any fire at the house. He did
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not know how long the ignitable mixture had been
in the house and did not know how long it takes for
gasoline to evaporate.
7. The Examination of Phillip Howell
{¶61} Phillip Howell testified that he is employed as
a police detective with the City of East Cleveland.
{¶62} On October 16, 2018, Howell talked to a
homeowner on Savannah Avenue who maintained a
video surveillance system. Howell obtained a search
warrant and gathered the recording system for
review.
{¶63} On November 9, 2018, Howell obtained a gas-
station owner’s consent to collect recordings from the
gas station’s video surveillance system. The gas
station was located on Euclid Avenue near the
Savannah Avenue crime scene.
{¶64} On cross-examination, Howell admitted that
he did not inquire as to which employees were
working at the gas station on October 9 and 10, 2018.
He also did not ask for transaction history like
credit-card receipts from those days.
{¶65} On November 10, 2018, Howell went to an
abandoned residence on Wadena Avenue in East
Cleveland, where there “was kind of * * * like a
dump site.” The home was “right around the corner”
from the Savannah Avenue crime scene and
investigators “had information that the suspects
were at that residence” with Paul and P.B. Howell
searched the outside of the residence and found
examination-gloves—some blue and others clear—
scattered around the home’s driveway and backyard.
The gloves were collected as evidence.
{¶66} On cross-examination, Howell admitted that
no investigator went into the house at the “dump
site” on Wadena Avenue, despite investigators’
belief that the site was the staging area for the
homicides.
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{¶67} On November 12, 2018, Howell went to a CPR
Cell Phone Repair store in Mayfield Heights, Ohio
based on “information that one of the suspects had
taken a PlayStation from the victim’s house in
Bedford and that the item was there at that CPR
store.” Howell collected a PlayStation videogame
console from the store as evidence.
{¶68} On cross-examination, Howell admitted that
no investigator collected security-camera recordings
from that store.
8. The Examination of James Kooser
{¶69} James Kooser testified that he has been
employed as a firearms and tool marks examiner by
the Cuyahoga County Regional Forensic Science
Laboratory for approximately five and a half years
and was a Cleveland police detective for over 30
years before that. The state offered him as an expert
in the field of firearm and tool mark examination
and the defense stipulated to his qualifications. He
testified to the following facts and conclusions
relevant to this investigation.
{¶70} Kooser examined two spent bullets and five
fired cartridge cases found in the burned-out Buick
Lacrosse, as well as two spent bullets recovered from
P.B.’s body. He determined that all five of the fired
9 mm cases were fired from the same Glock pistol.
He determined that all four spent bullets—which
were each 9 mm caliber—were fired from the same
gun, which could have been manufactured by one of
several manufacturers, including Glock. Kooser said
it was his belief that all the bullets and all the cases
were fired from the same Glock pistol.
9. The Examination of Curtiss Jones
{¶71} Curtiss Jones testified that he is employed by
the Cuyahoga County Medical Examiner’s Office as
a supervisor for 19 years in the trace-evidence unit.
The state offered him as an expert in trace evidence
analysis and the defense stipulated to his
qualifications. He testified to the following facts and
conclusions relevant to this investigation.
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{¶72} The medical examiner’s office received the
silver Buick LaCrosse containing Paul’s and P.B.’s
bodies on October 10, 2018. Jones removed Paul and
P.B. from the vehicle and processed trace evidence
from their bodies.
{¶73} Paul was in “the rear bench seat of the vehicle
with head towards the driver’s side of the vehicle
and facing forward in the vehicle.” There was burned
white fabric, possibly from a “hooded garment,”
around his neck. He also had burned green fabric
around his neck, which could have been tied in a
knot. He had a “USB style charging cord” wrapped
around his wrists and knotted into a binding; a piece
of clear tape was found melted onto the cord. He had
an “orange electrical extension cord” wrapped
around his ankles and knotted into a binding.
{¶74} P.B. was also in the back seat, oriented with
her head towards the passenger side. P.B.’s wrists
and ankles had not been bound.
{¶75} Five cartridge cases and two spent bullets
were found in the back seat of the vehicle.
{¶76} The medical examiner’s office received
Newberry’s Ford Edge for processing on November
29, 2018. Jones collected samples from inside and
outside the vehicle to look for bodily fluids, hair and
DNA.
10. The Examination of Andrew Harasimchuk
{¶77} Andrew Harasimchuk testified that he is a
special agent with BCI and has been employed in
that capacity for seven years.
{¶78} East Cleveland police asked BCI to process
Newberry’s Ford Edge for blood and gunshot
residue. Harasimchuk and another special agent,
Dan Boerner, processed the vehicle on November 6,
2018. Harasimchuk understood that the vehicle had
been at an automobile dealership before East
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Cleveland police impounded it; the vehicle had been
“detailed”—cleaned—twice before his examination.
{¶79} Harasimchuk did not test for gunshot residue
because the cleanings made the test futile. He did
not find blood anywhere on the inside or outside of
the car.
11. The Examination of Lisa Moore
{¶80} Lisa Moore testified that she is employed as a
DNA analyst by the Cuyahoga County Regional
Forensic Science Laboratory, part of the medical
examiner’s office; she has been in that role since
2002. The state offered her as an expert in the field
of forensic DNA testing and analysis and the defense
stipulated to her qualifications.
{¶81} Moore swabbed both sides of the examination-
glove fragment found in Paul B.’s house. She found
DNA on the swab and entered the DNA profile in the
Combined DNA Index System (“CODIS”), which
revealed a preliminary association with Kodii
Gibson. The DNA matched Gibson as the “major
contributor” and one unknown contributor. There
was positive match support for Newberry as the
unknown minor contributor. The data generated
during Moore’s processing of this sample was sent to
an outside lab operated by a company called
Cybergenetics.
{¶82} There was no match support for Newberry,
Gibson or Sheeley found on swabs taken from
various places on the burned-out Buick LaCrosse, in
Paul’s house and on the ligatures around Paul’s
body. The only DNA found on those swabs was
Paul’s.
{¶83} The DNA from many of the samples collected
from Newberry’s Ford Edge matched to Newberry.
Samples from the rear seating area matched to
Newberry and Quentin L. Palmer. A sample from
the rear passenger door hand grip matched to
Sheeley. A sample taken from the rear passenger
door armrest showed positive match support for
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Sheeley and Palmer—and P.B. But the samples from
the armrest were not conclusive.
{¶84} On cross-examination, Moore admitted that it
makes sense that Newberry’s DNA would be in the
Ford Edge if Newberry used it frequently. She
further admitted that a passenger sitting in
Newberry’s car might pick up some of Newberry’s
DNA. She admitted that it is possible that the
passenger could then deposit Newberry’s DNA on
another object sometime later.
{¶85} Moore admitted that, of the DNA she found on
the piece of the blue glove found in Paul’s home,
approximately 95 percent matched to Gibson. The
remaining DNA matched to a minor contributor.
While there was positive match support that the
minor contributor was Newberry, the match was
considered inconclusive according to the medical
examiner’s office’s standards at the time of the test.
{¶86} On redirect, Moore testified that
Cybergenetics’ TrueAllele software has been peer
reviewed and was validated by the medical
examiner’s office.
12. The Examination of Quiana Gilbert
{¶87} Quiana Gilbert testified that Kodii Gibson is
Gilbert’s child’s father. In October 2018, Gibson
would “hang around” Newberry and Sheeley; he had
done so for about six months. She used to see the
three men together about once a month.
{¶88} On October 9, 2018, Gibson drove Gilbert to
her workplace in her car, dropping her off at around
3 p.m. Newberry and Sheeley were also in the car on
the drive. The plan was for Gibson to pick Gilbert up
at 11 p.m. when her shift ended but at some point
Gibson texted her and made clear that Gilbert
needed to find a different way to get home. Gibson
arranged for Sheeley’s girlfriend to pick Gilbert up
from work and take her home but Gilbert ultimately
decided to get a ride home from a co-worker. Gilbert
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and Gibson were texting throughout the night of
October 9, 2018.
{¶89} Gilbert woke up at 7 a.m. on October 10, 2018
and Gibson had not yet returned her car. She texted
him to ask where her car was. That morning, she
received a call from Gibson about a gas can and,
based on that conversation, brought a gas can from
her house to Wadena Avenue in East Cleveland.
Gibson’s grandmother lived on Wadena. When
Gilbert arrived at Wadena, she saw Gibson standing
next to an abandoned house located two doors down
from Gibson’s grandmother’s home. She did not see
her own car. She pulled into the driveway of the
abandoned house and she saw Newberry’s vehicle
there. She did not see Newberry.
{¶90} Gibson walked to the car that Gilbert was in,
retrieved the gas can from her and gave her the keys
to her car. She learned that her car was parked “[o]ff
of 116th,” the street on which Sheeley lived.
{¶91} After giving Gibson the gas can, Gilbert did not
see him until the next day (October 11, 2018). When
she saw him next, Gibson had a red duffle bag that
said “JACK Casino” on it; he also had “[a] game
system and a belt.” She had never seen Gibson with
those items before. There came a time that Gilbert
went with Gibson to take the gaming system to a
business called “CPR”; Gibson said the gaming
system was broken.
{¶92} The state played surveillance-camera footage
from the gas station located at the intersection of
Wadena Avenue and Euclid Avenue. According to
the time stamps on the recording, the recording
captures the outside of the gas station during the
following windows on October 10, 2018: 12:41–12:48
a.m., 7:40 a.m., 7:47 a.m., 8:10–8:16 a.m. and 8:29–
8:34 a.m.
{¶93} The state played the portion of the recording
captured between 12:41 and 12:48 a.m. 3 The
recording shows a dark-colored vehicle pulling up to
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a gas pump; Gilbert identified the vehicle as
Newberry’s. Two people get out of the car; Gilbert
identified one as Gibson and the other as Newberry.
The person identified as Newberry exited the vehicle
from the rear passenger door. The person identified
as Gibson appears to interact with a gas station
employee while the person identified as Newberry
appears to walk around the outside of the gas station
using a cell phone. Gibson gets back into the driver’s
seat of the vehicle and, a few minutes later, drives
in reverse for a few feet. Newberry enters the rear
passenger seat and the vehicle drives away from the
station at 12:48 a.m.
[FN3] The recording is choppy,
seeming to capture a frame every four
seconds or so.
{¶94} The state played the portions of the recording
captured at 7:40 and 7:47 a.m. The recording shows
a dark-colored vehicle driving through the station’s
lot and exiting the lot at 7:40 a.m.; Gilbert identified
the vehicle as Newberry’s. The recording shows a
dark-colored vehicle pulling into the lot at 7:47 a.m.;
Gilbert again identified it as Newberry’s and said
the car was traveling through the parking lot in the
direction of Wadena Avenue.
{¶95} The state played the portion of the recording
captured between 8:10 and 8:16 a.m. The video
shows two people walking in the gas station’s
parking lot toward the station, appearing to come
from the direction of Wadena Avenue. Gilbert
identified them as Gibson and Sheeley. The person
identified as Gibson appears to make a phone call at
(according to the timestamp) 8:13 a.m.; Gilbert said
this was around the time that Gibson called her to
have her bring him a gas can. The men identified as
Gibson and Sheeley then walk away from the station
through the parking lot in the direction of Wadena
Avenue.
{¶96} The state played the portion of the recording
captured between 8:29 and 8:34 a.m. The recording
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shows two people walking in the gas station’s
parking lot toward the station, appearing to come
from the direction of Wadena Avenue. Gilbert
identified them as Gibson and Sheeley and
identified that Gibson was holding the gas can she
had dropped off to him at the abandoned house on
Wadena. The two are seen outside the gas station,
with Gibson leaving view of the camera for a time,
until 8:34 a.m., at which time they exit the gas
station through the parking lot in the direction of
Wadena Avenue with the gas can.
{¶97} On cross-examination, Gilbert admitted that
she did not see Newberry in the surveillance video
recordings after 12:48 a.m. She admitted that she
could not tell from the recordings who was driving
Newberry’s vehicle in the later recordings.
{¶98} Gilbert testified that she was texting with
Gibson throughout the night of October 10, 2018,
and said she was concerned for Gibson’s safety. She
testified that she understood Gibson was with
Newberry and Sheeley that night.
{¶99} On cross-examination, Gilbert admitted that
Gibson told her to bring the gas can because her car
needed gas, which was a lie. She admitted that
Gibson has lied to her in the past.
{¶100} Gilbert further admitted that she had
criminal charges filed against her for lying to the
Cleveland Heights Police Department with respect
to a police chase in which Gibson had been involved.
The incident occurred a couple weeks before October
10, 2018. She further admitted that those charges
were dropped in exchange for her testimony against
Newberry.
{¶101} Gilbert further admitted that she told police
in November 2018 that when she got to Wadena
Avenue with the gas can, she saw Gibson coming
from Newberry’s car (as opposed to standing outside
the house, as she testified). She further admitted
that she first told police that she had thrown away
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the videogame console (as opposed to taking it to
CPR as she testified).
{¶102} On redirect, Gilbert said that she lied in that
first interview because Gibson had been arrested the
day before and she was concerned about him.
13. The Examination of Jacob Kunkle
{¶103} Jacob Kunkle testified that he is employed as
a supervisory senior resident agent with the Federal
Bureau of Investigation and is now in charge of the
FBI’s Canton and Mansfield offices. He said he is one
of about 80 special agents nationwide that are
assigned to the FBI's Cellular Analysis Survey Team
for which he received specialized training in locating
cell phones based on the records of cellular-
communications providers. The state offered him as
an expert in historical location analysis and the
interpretation of cell-phone records; the defense did
not object to his qualifications.
{¶104} Kunkle testified that communications
providers record the date and time of
communications that occur from a particular cell
phone, the parties involved, the duration of the
communication and the cell-phone tower used. The
records further identify which side of a tower, which
“sector,” a communication used. “[I]f your phone
makes or receives a communication,” he explained,
“it selects the strongest and clearest signal from one
of those towers.” Many times, that is the closest
tower, but not always. In the Cleveland area, this
information can locate a cell phone within,
generally, a “few square mile area.” He described
this analysis as “a piece to the puzzle,” one that
cannot “precisely locate someone.” He said the
analysis “just gives you a general idea of where the
phone was and whether it was in a particular area
on a given date and time.” He said that when he
performs this analysis, many times he has “no
knowledge of who possessed the phone on a given
date or time.” The analysis also does not identify the
content of the communications.
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{¶105} Kunkle analyzed call detail records from T-
Mobile for cell-phone numbers associated with
Gibson and Newberry, one ending in -1900
(Gibson’s) and the other ending in -6116
(Newberry’s), on October 10, 2018.
{¶106} Between 2 a.m. and 4 a.m., there was “quite
a bit of activity” on the phone ending in -1900, “and
that activity indicates that that phone moved from
the East Cleveland area down into the Bedford area
during that time period.” There was only one call on
the phone ending in -6116 in that time window; it
was “down in the Shaker Heights area” at 2:21 a.m.
{¶107} Between 4 a.m. and 6 a.m., there were about
51 calls made to or from the phone ending in -1900
and the records “indicate that this particular phone
was down in the Bedford area of Ohio” at that time.
There was no activity noted from the phone ending
in -6116, so the records provide no information about
where that phone was during that window.
{¶108} Between 6 a.m. and 8 a.m., the -1900 number
used a tower in Maple Heights and then moved into
the East Cleveland area. There were two outgoing
calls and one incoming call between 6:55 a.m. and
7:58 a.m. on the -6116 phone “which was up in the
East Cleveland area.” Both phones used the same
side of the same tower for several calls between 6:55
a.m. and 7:58 a.m. on October 10, 2018.
{¶109} Between 8 a.m. and 8:30 a.m., both phones
again used the same side of the same tower for
communications, indicating that they were within
the same several square-mile area in that window.
{¶110} On cross-examination, Special Agent Kunkle
admitted that the list of phone towers he has from
the service provider would not show which towers, if
any, were not functioning—for maintenance or
otherwise—on October 10, 2018. He also did not
investigate what, if any, potential obstructions exist
in the relevant areas that may have prevented a cell
phone from connecting to the closest tower on
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October 10, 2018. He also did not know the range of
the towers at issue.
14. The Examination of Jennifer Bracamontes
{¶111} Jennifer Bracamontes testified that she is
employed as a DNA analyst at Cybergenetics and
has been so employed for ten years and that she runs
DNA data through Cybergenetics’ TrueAllele
software, which performs DNA interpretation. The
state offered her as an expert in DNA interpretation
and the defense did not object to her qualifications.
She testified to the following facts and conclusions
relevant to this investigation.
{¶112} Cybergenetics’ TrueAllele software “is a
computer system that uses math and statistics and
sampling to separate out contributors of DNA
mixtures or samples that have more than one person
present in them”; it is “one type of probabilistic
genotyping software.”
{¶113} On June 7, 2019, the medical examiner’s
office sent Cybergenetics the DNA data from the
glove fragment found at Paul B.’s house, along with
reference samples for the victims and suspects. After
running the data through the TrueAllele software, it
was determined that there were “two inclusionary
match statistics.” There was a match between the
glove and Gibson, which was “16.5 octillion times
more probable than a coincidence.” There was also
“a match between the glove and Mr. Newberry”
which was “182,000 times more probable than a
coincidence.” Bracamontes explained that only one
in 3.76 million people would match as strongly as
Newberry did. She further explained that the
software inferred that Gibson contributed around
85% of the DNA found in the sample and Newberry
contributed around 6%; the remaining 9% was from
an unknown person.
{¶114} On cross-examination, Bracamontes
admitted that the TrueAllele software is only used
in 10 of the nearly 400 crime laboratories in the
country. She further admitted that Cybergenetics is
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a for-profit company that had collected $8,500 from
the prosecution for developing the reports in this
case and would collect more as a result of her
testimony at trial. Finally, she admitted that
Cybergenetics does not have “any reporting
thresholds” so it “report[s] whatever comes out” from
the software’s analysis of the data.
{¶115} On redirect, Bracamontes said the company
would have had no problem reporting to the
prosecutor’s office if there had been support for
excluding Newberry as a contributor to the DNA on
the glove fragment.
15. The Examination of Dr. Joseph Felo
{¶116} Dr. Joseph Felo testified that he is employed
as a forensic pathologist and the Chief Deputy
Medical Examiner for Cuyahoga County. He said he
has been employed as a forensic pathologist for over
24 years. The state offered him as an expert in
forensic pathology and the defense stipulated to his
qualifications. He testified to the following facts and
conclusions relevant to this investigation.
{¶117} Dr. Andrea McCollom performed the
autopsies on Paul and P.B. which Dr. Felo reviewed
prior to trial.
{¶118} The cause of Paul B.’s death was determined
to be “[b]lunt impact to head with brain injuries.”
Other conditions that contributed to the death were
“[c]onflagration injury [flame burns] with thermal
injuries and asphyxia by carbon monoxide.” Dr. Felo
described that the blunt injuries to Paul's head were
severe, but are not always fatal. He described that
the burns and asphyxia are not always fatal either.
But “putting the two together, they’re fatal.” He
summarized that the “blows to the head and the
brain injuries” were the primary cause of Paul’s
death “[a]nd what pushed him over the edge and
finally caused his death is the burns and the carbon
monoxide poisoning.” The autopsy revealed that
Paul was alive during the fire as he had breathed in
smoke from the fire before death.
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{¶119} The cause of P.B.’s death was determined to
be “[g]unshot wounds of the head with skull and
brain injuries.” Specifically, the autopsy revealed
that P.B. had been shot three times in the head and
died before the fire started.
16. The Examination of Annette Kennedy
{¶120} Annettee Kennedy testified that she owns a
used car lot in Cleveland called J&W Auto.
{¶121} Newberry was a customer of J&W Auto and
had purchased “a couple cars” from the business. On
September 21, 2018, Newberry bought a navy blue
Ford Edge. He asked that the car be registered in his
mother’s name. Around three weeks later, Newberry
returned the car because—he said—the radio was
not working properly and “he just didn’t want the
car[;] [h]e wanted to be put into something else.”
Newberry had tinted the vehicle’s windows, so he
was told he would have to remove the tint before
returning the car. Newberry had that work
completed by the next day. Newberry purchased a
light maroon Sonata on October 26, 2018, the same
day Newberry turned in the Ford Edge; the car was
also placed in his mother’s name.
17. The Motions to Suppress Evidence and
Dismiss the Indictment
{¶122} During trial, outside the presence of the jury,
the defense moved to suppress a recording
investigators had made of an interview they
conducted with Newberry. The defense related that
Newberry was represented by a lawyer who was
present at the interview. At the end of the recorded
interview, the lawyer asked the detectives to turn off
the recording. The detectives responded, “Give us
five seconds” and left the room, leaving Newberry
alone with counsel. The detectives did not turn off
the recording equipment, which captured attorney–
client communications between Newberry and his
counsel.
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{¶123} The defense argued that the recording should
be suppressed and the indictment dismissed for
what the defense viewed as an intentional violation
of the attorney–client privilege.
{¶124} The trial court denied the motion to suppress
and the motion to dismiss the indictment. It ordered
that the portion of the recording containing the
attorney–client communications be excluded from
the exhibit that would be shown to the jury.
18. The Examination of Kenneth Lundy
{¶125} Kenneth Lundy testified that he is employed
as a police captain with the East Cleveland Police
Department but was a detective with the
department in the fall of 2018.
{¶126} Lundy was assigned to the investigation of
Paul’s and P.B.’s deaths. In speaking with the
victims’ relatives, Lundy came to learn that two
Playstation consoles, designer belts, watches and
shoes had been stolen from the Gould Avenue
residence, as were a “Louis Vuitton hat[ ] and a black
and red JACK’S Casino duffle bag.”
{¶127} Investigators received a tip that a “dark
colored SUV” drove slowly past Paul B.’s Gould
Avenue house at around 3 a.m. on October 10, 2018.
The security camera at Harris’ home later recorded
Paul B.’s Buick LaCrosse driving in East Cleveland,
followed closely by a dark-colored Ford Edge with a
temporary tag. Investigators came to learn that
Newberry had bought and returned a blue 2010 Ford
Edge to J&W Auto; they towed the car from the lot
to process it for evidence.
{¶128} Lundy interviewed Newberry on November 9,
2018. The state played the recording of the
interview, during which Newberry claimed that a
“Jamaican Shawn” had his car at the time of the
murders.
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{¶129} After making investigation, Lundy found that
there was no merit “to the identification of Jamaican
Shawn.”
{¶130} Phone records showed that Gibson and
Newberry were communicating by phone on October
9 and in “the early morning hours” of October 10,
2018. For instance, by comparing the time stamp on
the gas station’s surveillance recordings with the
phone records, Lundy saw that Gibson’s phone
number was connected to Newberry’s phone number
in a call at around 8:31 a.m. on October 10 while
Gibson was at the gas station holding the gas can
Gilbert had brought him.
{¶131} The records also showed that Gibson’s and
Newberry’s cell phones were “hitting off the same
tower, so they’re in the same area” at around 8:56
a.m. that morning.
{¶132} The records also showed that there were over
60 calls between Gibson and Gilbert in the “late
night hours of October 9th into the early morning
hours of October 10th * * *.” Of those, 45 calls
occurred between 4:20 a.m. and 5:30 a.m. on October
10.
{¶133} The records also showed that Newberry’s
phone number and Gibson’s phone number were
communicating on October 10 with a phone number
associated with a Darriel Ray, whose grandmother
owned the house next to the vacant lot where Paul’s
and P.B.’s bodies were found. Gibson’s and
Newberry’s phone numbers were also
communicating on October 10 with a phone number
associated with an Antonio Bell, whose mother
owned the “dump site” house on Wadena Avenue
where investigators believe Paul and P.B. were
taken before their deaths.
{¶134} The phone numbers associated with
DeMarcus Sheeley and Quentin Palmer were also in
contact with the phone numbers of Gibson and
Newberry on October 9 and October 10.
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{¶135} On cross-examination, Lundy admitted that
Newberry voluntarily came to the East Cleveland
Police Department on November 9, 2018, to turn
himself in after police made it known that they
wanted to talk to him as a person of interest.
{¶136} Lundy admitted that, in the interview,
Newberry said he last saw his car at “one or two in
the morning,” which would have been after
Newberry was seen with the car at the gas station.
Lundy further admitted that Newberry exits his own
car from the back seat in the camera footage; in the
entire case, there are no photographs of Newberry
driving his car. Lundy further admitted that
Newberry said he did not get his car and cell phone
back until “somewhere before 12.” Lundy admitted
that Newberry does not appear on any of the gas-
station security footage from later in the morning of
October 10. He further admitted that he had
previously identified—under oath—one of the people
in those recordings as Newberry, but he had been
mistaken.
{¶137} Lundy admitted that the burglary in Bedford
could have occurred between 3 a.m. and 7 a.m. on
October 10; it was not known when the gasoline was
poured in the house and there was no video footage
of whoever poured it in there.
{¶138} Lundy admitted that Newberry told
investigators he did not have his cell phone during
the relevant time period on October 10. No one saw
Newberry talking on his phone during that time.
{¶139} He admitted that, while the FBI told him the
phones used the same tower, he cannot tell how close
those two phones were to each other.
{¶140} He admitted that no items identified as stolen
from Paul B.’s Bedford home were found in
Newberry’s possession.
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{¶141} Lundy admitted that law enforcement asked
Newberry about “Jamaican Shawn” first, based on
information they had obtained from someone else;
Newberry did not volunteer that name to them. On
redirect, Lundy said the first person to mention
“Jamaican Shawn” to them was Newberry’s mother.
D. The Motion for Acquittal and the Defense
Case
{¶142} After the close of the state’s case, Newberry
moved for acquittal on all the charges pursuant to
Crim.R. 29. The trial court denied the motion.
{¶143} The defense did not present a case. It
renewed the motion for acquittal at the close of trial
and the trial court denied the renewed motion.
E. The Verdict
{¶144} On March 16, 2022, the jury returned its
verdict. The jury found Newberry guilty on all
counts with their attached specifications, except
that it found that the state had not proven the
firearm specifications attached to Counts 2, 5, 6 and
7. The trial court then took Count 15, which was
tried to the bench, under consideration. The trial
court found Newberry guilty of Count 15.
Newberry, 2023 WL 6475159, at *2–16.
Procedural background
Sentencing
In March 2022, the trial court merged as to each victim the felonious
assault, murder, aggravated arson, and aggravated murder counts, and for
each victim sentenced Newberry to consecutive life-in-prison terms with the
possibility of parole after 30 years. Doc. 20-1, at 57 (Exhibit 15). The court
sentenced Newberry to five additional years on the remaining counts, for an
aggregate sentence of 65 years to life in prison. Id.
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 32 of 92. PageID #: <pageID>33 Direct appeal In April 2022, Newberry, through new appointed counsel, appealed to the Ohio court of appeals. Doc. 20-1, at 60 (Exhibit 16). About two months later, Newberry retained attorney Kimberly Kendall Corral, who then entered a notice of appearance. Id. at 946 (Exhibit 45). The day that Newberry’s appellate brief was due, Corral moved to withdraw from the case due to a conflict of interest. Id. at 74–76 (Exhibit 17). Then attorney Katerina MacGregor, an attorney in Corral’s law firm, filed a notice of appearance on Newberry’s behalf, id. at 946 (Exhibit 45), and a motion to supplement the record, instanter, on Newberry’s behalf, id. at 79 (Exhibit 18). The court granted Corral’s motion to withdraw as counsel, and denied Newberry’s motion to supplement the record because it contained evidence outside the trial-court record. Id. at 105–06 (Exhibits 19 & 20). In his merits brief, Newberry raised the following assignments of error:2 1. The trial court erred by not removing juror 31 for cause A. trial counsel was ineffective for failing to challenge juror 31 for cause 2. The trial court erred by admitting the appellants recorded interview where law enforcement improperly recorded appellant’s privileged meeting with counsel 3. The trial court erred when it overruled appellant’s motion for a mistrial 2 In this report and recommendation, I have reproduced Newberry’s grounds for relief are reproduced as written, other than that I have eliminated the all-caps for easier reading. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 33 of 92. PageID #: <pageID>
34 4. Appellant was denied the effective assistance of counsel in violation of his in violation of the Sixth Amendment to the United States Constitution A. Counsel’s failure to object, raise a Daubert challenge, to the scientific cell phone location data denied appellant effective assistance of counsel B. Appellant’s counsel was ineffective for failing to object to the admission of cell phone records which had not been properly authenticated 5. The admission of testimony as to the content of unauthenticated records is plain error in violation of Appellant’s Fifth, Sixth, and Fourteenth Amendments rights 6. The trial court erred when it admitted heresay evidence in violation of appellant’s Confrontation rights 7. Improper identification testimony of police detective’s, identifying appellant as the person in a gas station surveillance video invaded the providence of the jury in violation of appellant’s rights A. Trial counsel was ineffective for failing to contemporaneously object to improper identification B. the trial court abused its discretion in admitting testimony which the trial court determined to be an improper identification C. The prosecution engaged in misconduct it solicited identification after agreement that such identification was improper and “that mistake won’t happen again.” Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 34 of 92. PageID #: <pageID>
35 8. The trial court failed to inquire into the nature and extent of a conflict of interest arising out of appellant counsels representation of the lead police investigator 9. The trial court abused its discretion when it failed to disqualify defense counsel absent a knowing intelligent and voluntary waiver 10. Appellants convictions are against the manifest weight of evidence 11. The state failed to present sufficient evidence to prove each and every element of the offenses beyond reasonable doubt 12. The cumultive effect of multiple error deprived appellant of his constituitonall guarunteed right to a fair trial under the federal and state constituion Doc. 20-1, at 112–13 (Exhibit 21). On October 5, 2023, the Ohio court of appeals affirmed the trial court’s judgment. Id. at 210–73 (Exhibit 23). Newberry, through retained counsel Gabrielle Ploplis, also from Corral’s law firm, appealed to the Ohio Supreme Court. Doc. 20-1, at 274. In his memorandum in support of jurisdiction, Newberry set forth the same propositions of law as he raised in his direct appeal. Doc. 20-1, at 277–78 (Exhibit 25). On February 6, 2024, the Ohio Supreme Court declined under its rule of practice 7.08(B)(4) to accept jurisdiction of Newberry’s appeal. Id. at 314 (Exhibit 27). Petition for post-conviction relief On June 23, 2023, while his direct appeal was pending, Newberry, through attorney Ploplis, filed in the trial court a petition to vacate or set aside Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 35 of 92. PageID #: <pageID>
36 judgment, and requested an evidentiary hearing. Doc. 20-1, at 316 (Exhibit 28). In his petition, Newberry claimed that he received ineffective assistance of counsel and raised the following three issues: 1. Ronald Newberry is entitled to an evidentiary hearing and subsequent new trial as his trial counsel’s former representation of East Cleveland Detective Joseph Marche presented an unwaivable conflict in violation of Newberry’s constitutional rights. 2. Defense Kevin Spellacy was ineffective for failing to impeach Detective Lundy with respect to information obtained as to his integrity as an East Cleveland Police Detective. 3. Newly discovered evidence reveals that the State failed to disclose Brady material as to the training and certification of Detective Kenneth Lundy. Id. at 324–30. In June 2023, Newberry filed a motion to supplement the petition for post-conviction relief with numerous exhibits. Id. at 338 (Exhibit 29). The State filed a brief in opposition to Newberry’s post-conviction petition. Id. at 515 (Exhibit 30). In November 2023, Newberry moved to supplement his petition with newly discovered evidence. Id. at 731 (Exhibit 31). He submitted an affidavit of co-defendant Demarcus Sheeley, in which, Newberry says, Sheeley “exculpate[s] [Newberry] from guilt in the murder, kidnapping and burglary” of Paul B. and P.B. Id. The State moved to strike Newberry’s supplement or, alternatively, urged the trial court to deny Newberry’s motion to supplement. Id. at 739 (Exhibit 32). In December 2023, Newberry filed another motion for Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 36 of 92. PageID #: <pageID>
37 leave to supplement his petition. Id. at 750 (Exhibit 33). He again submitted Sheeley’s affidavit. Id. The State opposed Newberry’s motion. Id. at 758 (Exhibit 34). On March 25, 2024, the trial court denied Newberry’s November and December 2023 motions to supplement; granted his June 2023 motion to supplement; and issued findings of fact and conclusions of law denying without a hearing Newberry’s postconviction petition. Id. at 774, 784–834 (Exhibit 35 & 36). Newberry appealed to the Ohio court of appeals. Doc. 20-1, at 775 (Exhibit 36). In his brief, he raised the following nine assignments of error: 1. The trial court erred in failing to hold an evidentiary hearing on appellant’s postconviction petition. 2. The trial court erred in denying appellant’s postconviction petition. 3. The trial court erred in finding that appellant’s claims were barred by res judicata. 4. The trial court erred in finding that representation of Commander Marche by appellant’s trial counsel did not amount to an actual conflict. 5. The trial court erred in finding that the impeachment of Marche would have been improper. 6. The trial court erred in fnding that appellant failed to establish that he did not satisfy the Strickland ineffectiveness standard. 7. The trial court erred in finding that appellant failed to demonstrate a Brady/Giglio violation. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 37 of 92. PageID #: <pageID>
38 A. The new evidence was both favorable and material. B. The new evidence was known by the state and undisclosed to the defense. 8. The trial court erred in providing that appellant did not meet the Brady standard because the information was publicly available 9. The trial court erred in considering admissibility is assessing appellant’s Brady/Giglio claim. Id. at 841 (Exhibit 37). In January 2025, Newberry filed a notice of supplemental authority. Id. at 912 (Exhibit 41). On June 5, 2025, the Ohio court of appeals affirmed the trial court’s denial of Newberry’s postconviction petition. See State v. Newberry, Ohio 8th Dist. App. No. 113844, 2025 WL 1588498 (Ohio Ct. App. June 5, 2025). Newberry did not appeal to the Ohio Supreme Court. Federal habeas corpus petition On February 5, 2025, Newberry, through Attorney Corral, filed his federal habeas corpus petition under 28 U.S.C. § 2254, raising twelve grounds for relief. Doc. 1. Respondent filed a notice of a potential conflict of interest of counsel Corral, Doc. 8, and attorney Ploplis entered a notice substituting herself for Corral, Doc. 10. Respondent raised concerns that Corral’s conflict was imputed to Ploplis. Doc. 11. The parties filed responsive briefs and the Court held a hearing. Doc. 16. After the hearing, Ploplis filed a Notice of Waivers of Conflict. Doc. 17. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 38 of 92. PageID #: <pageID>
39 On August 25, 2025, Newberry filed an Amended Petition, in which he raises the following grounds for relief: Ground one: Trial court erred in failing to remove juror for cause, and trial counsel was ineffective for failure to challenge the juror for cause. Supporting facts: During voir dire, juror 31 disclosed that his daughter was friends with the victim’s daughter. Although the juror indicated that he had not had contact with his daughter for four years, that timeline placed the juror’s last communication with the daughter right at the time the murder occurred. The murder had occurred four years before the trial was held. Ground two: The trial court erred by permitting introduction of portions of Newberry’s recorded interview, where police improperly obtained such portions through recorded privileged meeting with his counsel. Supporting facts: The prosecution introduced portions of a recorded statement that Newberry made while with his attorney at the East Cleveland Police Department. The video introduced originally contained 11 minutes of footage of a privileged communication between Newberry and his defense attorney. His attorney had explicitly instructed officers to discontinue recording for the duration of their privileged communication, yet the police secretly continued to record. The trial court permitted the prosecution to utilize the unprivileged portions of the video, and therefore, the state able to benefit from the infingement. Ground three: Trial court error in overruling Newberry's motion for a mistrial. Supporting facts: During examination of former East Cleveland Detective Lundy, the prosecution inquired into whether Newberry had ever provided a list of alibi witnesses. This question Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 39 of 92. PageID #: <pageID>
40 related to the interview conducted with Newberry and his attorney at East Cleveland Police Department (referenced in Ground Two). Newberry’s counsel offered to provide a list of alibi witnesses but no list was ever furnished. Ground four: Ineffective assistance of counsel in violation of the Sixth Amendment for failing to raise a Daubert challenge and failing to object to admission of unauthenticated cell phone records. Supporting facts: The prosecution offered scientific testimony of cellcite location data, through a witness who claimed to have specialized training to analyze the data and create a report which consisted of mapping of the user’s locations. The training referred to was 10 weeks of CAST. No testimony as to procedures used was introdued. There was no testimony as to source data, or what data each phone company provided. No testimony of how the records are produced by the company, who is responsible for production of records, coverage area of the tower was provided. The data is simply ented into a software system which determines path of travel. Record-keeping information is also highly relevant to admissibility assessment. No testimony authenticating such records was provided. Ground five: The admission of testimony as to the content of unauthenticated records in violation of the Fifth, Sixth and Fourteenth Amendments. Supporting facts: The cell phone records used to create map imaging of Newberry’s alleged location on the night of the homicides were admitted without proper authentication from a qualified witness, nor any authenticating documentation. Ground six: The trial court erred by admitting hearsay evidence in violation of the Confrontation Clause. Supporting facts: Quiana Gilbert, testified on behalf of the state that she “understood” her Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 40 of 92. PageID #: <pageID>
41 boyfriend to have been with Newberry the night of the homicide. The basis of this understanding was the co-defendant’s cellphone communications with her that night. Ground seven: Former East Cleveland Detective Lundy improperly identified Newberry in a gas station video, which invaded the providence of the jury in violation of Due Process protections, trial court erred in permitting such testimony, trial counsel was ineffective for failing to object to the testimony which violated the Sixth Amendment, and the state engaged in misconduct for soliciting the improper identification. Supporting facts: Detective Lundy repeatedly identified Newberry as the person shown in a grainy gas station video. The identification had already been deemed improper previously and was addressed amongst the parties prior to Detective Lundy’s testimony. The state elicited such testimony even though it had stated on the record that the former identification in the co-defendant’s trial was improper and was a mistake that “wouldn’t happen again”, counsel did not contemporaneously object to the improper testimony, and trial court allowed the identification despite acknowledging that the identification was improper. Ground eight: The trial court failed to inquire into the nature and extent of a conflict of interest arising out of appellant counsel’s representation of the lead police investigator. Supporting facts: Prior to trial, Newberry’s trial counsel had simultaneously represented the lead detective, Marche, who sat at the prosecution table and had led the investigation against him. The detective was not called as a witness by either side. The conflict was addressed on the record to which defense counsel provided vague details as to the prior representation of the detective. The trial court did not ask additional questions about the representation. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 41 of 92. PageID #: <pageID>
42 Ground nine: The trial court abused its discretion when it failed to disqualify defense counsel absent a knowing, voluntary, intelligent waiver which violated Due Process and Sixth Amendment rights to unconflicted representation. Supporting facts: Following vague disclosure of the conflict the trial court asked Newberry if he is “ok” with what he had just heard. Newberry replied in the affirmative without any discussion as to the ramifications of such a waiver, no discussion to ensure Newberry’s full understanding of the disclosure, and the nature of the conflict and how such could limit his counsel’s representation of him at trial. Ground ten: The state failed to present sufficient evidence to prove each and every element of the offenses beyond reasonable doubt. Supporting facts: All of the evidence presented against Newberry was circumstantial and lacking reliability. The evidence included unreliable and unauthenticated cell cite location data, hearsay testimony, and conflicting accounts lacking credibility. Additionally, surveillance footage confirmed that Newberry was not in fact at the gas station with the suspected co-defendants despite the improper identification by Detective Lundy. The entirety of the state’s case against Newberry was that his car was used to facilitate the homicides. However, evidence showed that his vehicle was present at a gas station without him. No evidence introduced by the state established Newberry’s presence at the suspected location of the homicide, nor was any evidence introduced to suggest that Newberry participated in said homicides. Doc. 19, at 6–11; Doc. 19-1. The Warden filed a Return of Writ, Doc. 20, Newberry filed a traverse, Doc. 23, and the Warden filed a reply, Doc. 24. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 42 of 92. PageID #: <pageID>
43 Legal Standard Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104–132, 110 Stat. 1214, petitioners must meet certain procedural requirements to have their claims reviewed in federal court. Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006). “Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381 (2001). Although procedural default is sometimes confused with exhaustion, exhaustion and procedural default are distinct concepts. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Failure to exhaust applies when state remedies are “still available at the time of the federal petition.” Id. (quoting Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). But when state court remedies are no longer available, procedural default rather than exhaustion applies. Id. Exhaustion A federal court may not grant a writ of habeas corpus unless the petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A). A state defendant with federal constitutional claims must fairly present those claims to the state courts before raising them in a federal habeas corpus action. 28 U.S.C. § 2254(b),(c); Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275–76 (1971); see also Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (“Federal courts do not have Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 43 of 92. PageID #: <pageID>
44 jurisdiction to consider a claim in a habeas petition that was not ‘fairly presented’ to the state courts”) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003)). A constitutional claim for relief must be presented to the state’s highest court to satisfy the fair presentation requirement. See O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). And a habeas petitioner must present both the factual and legal underpinnings of the claims to the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). This means that the “petitioner must present his claim to the state courts as a federal constitutional issue— not merely as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). Procedural default Procedural default may occur in two ways. Williams, 460 F.3d at 806. First, a petitioner procedurally defaults a claim by failing “to comply with state procedural rules in presenting [the] claim to the appropriate state court.” Id. In Maupin v. Smith, the Sixth Circuit directed courts to consider four factors when determining whether a claim is barred on habeas corpus review due to a petitioner’s failure to comply with a state procedural rule: whether (1) there is a state procedural rule applicable to the petitioner’s claim and whether the petitioner failed to comply with that rule; (2) the state court enforced the procedural rule; (3) the state procedural rule is an adequate and independent state ground on which the state can foreclose review of the federal Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 44 of 92. PageID #: <pageID>
45 constitutional claim; and (4) the petitioner can demonstrate cause for failing to follow the rule and actual prejudice by the alleged constitutional error. 785 F.2d 135, 138 (6th Cir. 1986); see also Williams, 460 F.3d at 806 (“If, due to the petitioner’s failure to comply with the procedural rule, the state court declines to reach the merits of the issue, and the state procedural rule is an independent and adequate grounds for precluding relief, the claim is procedurally defaulted.”) (citing Maupin, 785 F.2d at 138). Second, “a petitioner may procedurally default a claim by failing to raise a claim in state court, and pursue that claim through the state’s ‘ordinary appellate review procedures.’” Williams, 460 F.3d at 806 (citing O’Sullivan, 526 U.S. at 847). “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.” Id. While the exhaustion requirement is satisfied because there are no longer any state remedies available to the petitioner, see Coleman v. Thompson, 501 U.S. 722, 732 (1991), the petitioner’s failure to have the federal claims considered in the state courts constitutes a procedural default of those claims that bars federal court review, Williams, 460 F.3d at 806. To overcome a procedural bar, petitioners must show cause for the default and actual prejudice that resulted from the alleged violation of federal law that forms the basis of their challenge, or that there will be a fundamental miscarriage of justice if the claims are not considered. Coleman, 501 U.S. at 750. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 45 of 92. PageID #: <pageID>
46 Merits review If a state’s courts adjudicated the merits of a claim, a habeas petitioner may obtain habeas relief under 28 U.S.C. § 2254, if the petitioner can establish one of two predicates. To establish the first predicate, the petitioner “must identify a ‘clearly established’ principle of ‘Federal law’ that” has been established by a holding of the Supreme Court. Fields v. Jordan, 86 F.4th 218, 231 (6th Cir. 2023) (en banc); see 28 U.S.C. § 2254(d)(1). The petitioner must then show that state’s court’s adjudication “was contrary to,” or “involved an unreasonable application of” that “clearly established” precedent. 28 U.S.C. § 2254(d)(1) (emphasis added); see Fields, 86 F.4th at 232. To establish the second predicate, the petitioner must show that the state’s court’s adjudication “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)(2). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the [United States Supreme] Court on a question of law or” based on “a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A]n ‘unreasonable application Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 46 of 92. PageID #: <pageID>
47 of’” the Court’s holdings is one that is “‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). “[A] ‘clearly established’ principle of ‘Federal law’ refers to the “holdings,” not “dicta,” of the Supreme Court’s decisions. Fields, 86 F.4th at 231 (quoting White, 572 U.S. at 419). A state court is not required to cite Supreme Court precedent or reflect an “awareness” of Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts” such precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Lopez v. Wilson, 426 F.3d 339, 358 (6th Cir. 2005). If the Supreme Court has not addressed the petitioner’s specific claims, a reviewing district court cannot find that a state court acted contrary to, or unreasonably applied, Supreme Court precedent or clearly established federal law. Carey v. Musladin, 549 U.S. 70, 77 (2006); see White, 572 U.S. at 426 (“Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.”). In determining whether the state court’s decision involved an unreasonable application of law, the Court uses an objective standard. Williams, 529 U.S. at 410. “A state court’s determination that a claim lacks merit precludes federal habeas review so long as ‘fair-minded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 47 of 92. PageID #: <pageID>
48 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011). “[A] state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair- minded disagreement.” Harrington, 562 U.S. at 103. Discussion A portion of ground one fails on the merits and the remainder is procedurally defaulted. Ground one has two parts: Newberry argues that (1) the trial court erred when it failed to remove Juror 31 for cause, and (2) trial counsel was ineffective for failing to challenge Juror 31. Doc. 19, at 6. The basis for these arguments is the fact that during voir dire, Juror 31 “disclosed that his daughter was friends with the victim’s daughter.” Id. Newberry has procedurally defaulted his trial-court error claim Respondent argues that Newberry’s trial-court error claim is procedurally defaulted. Doc. 20, at 41. In his traverse, Newberry does not address this issue. Newberry raised this claim to the Ohio court of appeals on direct appeal. The Ohio court of appeals applied plain-error review to this claim “[b]ecause Newberry did not challenge juror No. 31 for cause during voir dire.” Newberry, 2023 WL 6475159, at *16. Ohio’s long-standing contemporaneous objection rule requires a party to make a contemporaneous objection to an alleged trial Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 48 of 92. PageID #: <pageID>
49 error to preserve the error for appellate review. See, e.g., State v. Murphy, 747 N.E.2d 765, 788 (Ohio 2001). When an Ohio court applies plain error review, it enforces an independent and adequate state ground that precludes federal habeas review. Scott v. Mitchell, 209 F.3d 854, 866–71 (6th Cir. 2000). And the state court’s plain error review “does not constitute a waiver of the state’s procedural default rules and resurrect the issue.” Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th Cir. 2012) (quoting Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006)). Because the Ohio court of appeals applied plain error review to Newberry’s claim that the trial court erred with respect to Juror 31, this claim is procedurally defaulted. Newberry has not alleged cause, prejudice, or actual innocence to excuse the procedural default. Newberry’s ineffective-assistance claim fails on the merits Newberry’s claim that trial counsel was ineffective for failing to object to Juror 31 fails on the merits. A successful ineffective-assistance claim requires a petitioner to demonstrate that: (1) “counsel’s performance was deficient”; and (2) “the deficient performance prejudiced the defense.” Jones v. Bradshaw, 46 F.4th 459, 487–88 (6th Cir. 2022) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The first prong is satisfied when a petitioner ‘show[s] that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Jones, 46 F.4th at 487 (quoting Strickland, 466 U.S. at 694). “The second prong is satisfied when the Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 49 of 92. PageID #: <pageID>
50
petitioner ‘show[s] that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’”
Jones, 46 F.4th at 487–88. “‘A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’” Jones, 46 F.4th at 488 (quoting
Strickland, 466 U.S. at 694). The combined effect of Strickland and 28 U.S.C.
§ 2254(d) is “‘doubly deferential’” review. Cullen v. Pinholster, 563 U.S. 170,
190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “When
2254(d) applies, the question is not whether counsel’s actions were reasonable,”
but “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at 105; Foust v. Houk,
655 F.3d 524, 533–34 (6th Cir. 2011). “Or, in more concrete terms, a federal
court may grant relief only if every ‘“fairminded juris[t]”’ would agree that every
reasonable lawyer would have made a different decision.” Dunn v. Reeves, 594
U.S. 731, 739–40 (2021) (quoting Harrington, 562 U.S. at 101).
The Ohio court of appeals determined that Newberry failed to show that
the trial court committed plain error by permitting Juror 31 to be seated on
the jury:
{¶151} Newberry has not demonstrated plain error.
His argument seems to be premised on a
presumption that is not supported by the record—
that juror No. 31’s daughter was friends with P.B.,
one of the victims. This is far from certain. Jennifer
Heard testified that Paul had other children,
including other daughters. The court read the
indictment to the venire before voir dire began, so
juror No. 31 knew that P.B. was one of the victims
in the case. If the juror’s daughter had been friends
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 50 of 92. PageID #: <pageID>51
with P.B., one can presume that he would have said
as much. The juror’s use of the present tense “is
friends” (as opposed to “was friends”) and reference
to “the victim’s daughter” (as opposed to “one of the
victims”) strongly suggests that the juror’s daughter
is friends with another of Paul’s children. But in any
event, the juror reported that his daughter’s
friendship with one of Paul’s children would not
affect the juror’s ability to be fair and impartial.
Based upon a review of the entire voir dire, we see
no obvious error in the trial court seating juror No.
31 on the jury.
Newberry, 2023 WL 6475159, at *17. The court then considered and rejected
Newberry’s related ineffective-assistance-of-counsel claim:
{¶153} A criminal defendant has the right to
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). In order to establish a claim of
ineffective assistance of counsel, a defendant must
demonstrate that (1) the performance of defense
counsel was seriously flawed and deficient and (2)
the result of the defendant’s trial or legal proceeding
would have been different had defense counsel
provided proper representation. See id. at 687, 104
S.Ct. 2052.
{¶154} In evaluating counsel’s performance on a
claim of ineffective assistance of counsel, the court
must give great deference to counsel’s performance
and “indulge a strong presumption” that counsel’s
performance “falls within the wide range of
reasonable professional assistance.” Strickland at
689, 466 U.S. 668, 686, 104 S.Ct. 2052; see also State
v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶69
(8th Dist.) (“‘A reviewing court will strongly presume
that counsel rendered adequate assistance and
made all significant decisions in the exercise of
reasonable professional judgment.’”), quoting State
v. Powlak, 8th Dist. Cuyahoga No. 99555, 2014-
Ohio-2175, ¶ 69.
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 51 of 92. PageID #: <pageID>52
{¶155} As it relates to counsel’s performance in voir
dire, “counsel is in the best position to determine
whether any potential juror should be questioned
and to what extent.” State v. Murphy, 91 Ohio St.3d
516, 539, 747 N.E.2d 765 (2001). Newberry must
demonstrate that counsel’s performance was
objectively unreasonable in light of counsel’s failure
to further question or strike the juror at issue. State
v. Bates, 159 Ohio St.3d 156, 2020-Ohio-634, 149
N.E.3d 475, ¶ 25. To establish prejudice, Newberry
“‘must show that [a] juror was actually biased
against him.’” (Emphasis omitted; alteration in
original.) Id., quoting State v. Mundt, 115 Ohio St.3d
22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67.
{¶156} There is no indication that juror No. 31 was
biased against Newberry. We do not view it as
objectively unreasonable that counsel did not
question the juror further or move to strike the juror.
The fact that the juror’s daughter is friends with one
of the victim’s children is not, standing alone, one of
the enumerated bases upon which a juror may be
challenged for cause under R.C. 2313.17. Moreover,
the juror reported that he had not spoken with his
daughter for years prior to trial. Finally, the juror
stated under oath that the relationship would not
affect his ability to be fair and impartial in the
matter. Under the facts and circumstances of this
case, we do not find that Newberry’s counsel was
ineffective with respect to the seating of juror No. 31
on the jury.
Newberry, 2023 WL 6475159, at *17–18.
Newberry argues that although Juror 31 “indicated that he had not had
contact with his daughter for four years, that timeline placed the juror’s last
communication with the daughter” four years before trial, “right at the time
the murder occurred.” Doc. 19, at 6. “Since his daughter and the victim’s
daughter were friends,” Newberry submits, “there is a substantial risk that
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 52 of 92. PageID #: <pageID>53 Juror 31 either had information relevant to the homicide disclosed to him by his daughter” or that “the closeness of the connection impacted his ability to be fair.” Doc. 23, at 6. Newberry’s argument rests on a premise not supported by the record— that Juror 31’s daughter was friends with the victim’s daughter at the time of the murder. The transcript shows otherwise. Juror 31 explained that “[i]t’s also believed that my daughter, who I haven’t spoke[n] to for years, is friends with the victim’s daughter…. I don’t know who she is or I have no contact with the victims.” Doc. 23, at 60. Juror 31’s belief that his daughter is friends with the victim’s daughter is consistent with his statement that he hasn’t spoken to his daughter in years, and that he has learned of his daughter’s believed friendship by some other means. Newberry’s assumption—that at the time of the murder, Juror 31 was in contact with his daughter who was friends with the victim’s daughter—is just that—an assumption unsupported by anything. In any event, “[t]he Constitution does not require ignorant or uninformed jurors; it requires impartial jurors. While it may be sound trial strategy for an attorney to exclude anyone with knowledge of the facts or the parties, such a result is not mandated by the Constitution.” McQueen v. Scroggy, 99 F.3d 1302, 1320 (6th Cir. 1996), overruled on other grounds by In re Abdur’Rahman, 392 F.3d 174 (6th Cir. 2004), in turn vacated by Bell v. Abdur’Rahman, 545 U.S. 1151 (2005). Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 53 of 92. PageID #: <pageID>
54 Newberry retorts that “federal courts have consistently held that implied or presumed bias exists when a juror has a close relationship to a principal in the trial, such as a victim or the victim’s family, and that such bias requires the juror’s removal for cause.” Doc. 23, at 7. Even if what Newberry says about the law is true, the transcript does not show that Juror 31 had a “close relationship to a principal in the trial, such as a victim or the victim’s family.” Nor was Juror 31 “a close relative to a party, victim, or other principal in the case,” as Newberry contends. Id. Simply put, Newberry has not established an “implied bias” of Juror 31. As his ineffective-assistance-of- counsel claim rests on such a finding, his claim necessarily fails on the merits. Ground two fails on the merits In ground two, Newberry argues that the trial court erred “by permitting introduction of portions of Newberry’s recorded interview, where police improperly obtained such portions through recorded privileged meeting with his counsel.” Doc. 19, at 8. Newberry explains that his conversation with counsel took place at the end of his police interview at the station, as the police were leaving the room before returning with a swab to take Newberry’s DNA sample. Id.; see Doc. 20-8, at 74, 76 (transcript). Newberry states that his attorney “explicitly instructed officers to discontinue recording,” but the police “secretly continued to record” a subsequent 11-minute private conversation Newberry had with his attorney. Doc. 19, at 8; see Doc. 20-8, at 74. The trial court permitted the State to use as evidence the police interview, minus the Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 54 of 92. PageID #: <pageID>
55
11-minute conversation between Newberry and his attorney at the end of the
recording. Doc. 20-8, at 83.
The Ohio court of appeals considered Newberry’s claim that the trial
court erred when it permitted the State to use the non-privileged part of the
video as follows:
{¶157} Newberry contends that the trial court erred
by admitting a video recording of an interview of
Newberry with police investigators. The original
recording captured Newberry consulting privately
with defense counsel but the version the state
offered at trial had that portion of the recording
removed. Newberry argued that the fact that the
state had recorded that conversation in the first
place violated his Sixth Amendment rights and,
therefore, the entire recording should have been
excluded or the indictment dismissed. The trial
court allowed the remainder of the recording—
which, again, did not include the attorney–client
conversation—to be admitted and played to the jury.
{¶158} “‘Implicit within the meaning of [the
constitutional right to counsel] is the right of a
criminal defendant to consult privately with his
attorney.’” (Alterations in original.) State v. Osie,
140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588,
¶ 131, quoting State v. Milligan, 40 Ohio St.3d 341,
342, 533 N.E.2d 724 (1988). But “‘[e]ven where there
is an intentional intrusion by the government into
the attorney–client relationship, prejudice to the
defendant must be shown before any remedy is
granted.’” Osie at ¶ 144, quoting United States v.
Steele, 727 F.2d 580, 586 (6th Cir. 1984).
{¶159} To determine prejudice, a court must look to
the factors identified in Weatherford v. Bursey, 429
U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977): (1)
whether the government deliberately intruded in
order to obtain confidential and privileged
information, (2) whether the government obtained
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 55 of 92. PageID #: <pageID>56
directly or indirectly any evidence which was or
could be used at trial as a result of the intrusion, (3)
whether any information obtained was or could be
used in any manner detrimental to the defendant
and (4) whether details about trial preparation were
learned by the government. Osie at ¶ 144, citing
Milligan at 344, 533 N.E.2d 724.
{¶160} Here, none of those four factors are present.
We find, however, that it was an unconscionable
violation of Newberry’s constitutional rights. There
is not, however, anything in the record that suggests
the government obtained information that it used or
could have used at trial or in another way
detrimental to Newberry. Finally, there is nothing
in the record suggesting that the government
learned any details about defense trial preparation
from the act.
{¶161} Therefore, the defense did not demonstrate
that they were entitled to any remedy beyond that
taken by the trial court, redacting the confidential
conversation from the recording played at trial.
Newberry, 2023 WL 6475159, at *18.
In his traverse, Newberry argues that the Ohio court of appeals’
“application of the Weatherford factors is unreasonable and unsupported by
the record.” Doc. 23, at 9. He asserts that the first factor, whether there was
“purposeful intrusion,” is met. Id. Even if it could be said that this factor was
met,3 Newberry hasn’t shown that he has met the remaining three factors. He
states that “the record demonstrates that such intrusion resulted in learning
3 In support of his argument, Newberry cites his attorney’s statements to
the trial court. Doc. 23, at 9 (citing Doc. 20-8, at 79).
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 56 of 92. PageID #: <pageID>57 of facts pertinent to the investigation—Petitioner Newberry’s connection to the victim.” Id. But he cites nothing to support this assertion. Later in his brief, Newberry asserts that in the tape he discussed his relationship with the victim. Id. at 10; see Doc. 20-8, at 79–80. Newberry, however, did not make this argument to the Ohio court of appeals. See Doc. 20- 1, at 120–21. In any event, Newberry doesn’t say what about his relationship to the victim was revealed or how any such relationship was “pertinent to the investigation.” Indeed, Newberry had at the time of his interview voluntarily come to the police station and the police took a DNA swab. See Newberry, 2023 WL 6475159, at *2. By then, the police had already learned of Newberry’s potential involvement, suspected that Newberry’s car had been used in the crime, and had confiscated the car from a used car lot. Doc. 20-8, at 104–13. Newberry concedes that “[t]he state linked Newberry to the murders of P.B. and Paul … by way of his vehicle.” Doc. 19-2, at 2. And the DNA testing on a glove fragment found in the victim’s home was a minor match to Newberry. Newberry, 2023 WL 6475159, at *9. So even if the police had learned from the private conversation information about an unspecified “relationship” that Newberry may have had to the victim, Newberry hasn’t shown that the information “produced, directly or indirectly, any of the evidence offered at trial.” See Weatherford, 429 U.S. at 552, 556. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 57 of 92. PageID #: <pageID>
58
Newberry hasn’t shown that the Ohio court of appeals misapplied the
Weatherford factors or that the court’s factual findings were unreasonable.
Ground two fails on the merits.
Ground three fails on the merits
In ground three, Newberry argues that the trial court erred when it
denied his motion for a mistrial. Doc. 19, at 9. The basis for his motion for a
mistrial was a reference to alibi witnesses. During Newberry’s police interview,
Newberry’s counsel “offered to provide a list of alibi witnesses but no list was
ever furnished.” Id. At trial, the State, during its direct examination of
Detective Lundy, asked whether Newberry had ever produced that alibi list
and Lundy said no. Id.
The Ohio court of appeals considered Newberry’s claim, and explained:
{¶162} Newberry contends that the trial court erred
by not ordering a mistrial during Lundy’s testimony
after the following exchange:
[PROSECUTING ATTORNEY]:
During the interview [Newberry gave
with police investigators], the
defendant stated he was going to
provide you with a list of names and
alibi witnesses. * * * Was that ever
provided?
[LUNDY]: No.
{¶163} Newberry says that this exchange implied
that Newberry had an affirmative duty to provide a
list of alibi witnesses to the police, undermining the
presumption of innocence “and effectively
reallocat[ing] the burden to the defense to disprove
the State’s case” in violation of the Fifth
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 58 of 92. PageID #: <pageID>59
Amendment.
{¶164} The decision to grant or deny a motion for
mistrial lies within the sound discretion of the trial
court. State v. Taylor, 8th Dist. Cuyahoga No.
111694, 2023-Ohio-928, ¶ 38; State v. Miller, 8th
Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 36,
citing State v. Garner, 74 Ohio St.3d 49, 59, 1995-
Ohio-168, 656 N.E.2d 623 (1995). This is “in
recognition of the fact that the trial judge is in the
best position to determine whether the situation in
his [or her] courtroom warrants the declaration of a
mistrial.” State v. Glover, 35 Ohio St.3d 18, 19, 517
N.E.2d 900 (1988).
{¶165} A court abuses its discretion when it exercises
its judgment in an unwarranted way with respect to
a matter over which it has discretionary authority.
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-
Ohio-3304, 187 N.E.3d 463, ¶ 35. An abuse of
discretion implies that the court’s attitude is
unreasonable, arbitrary or unconscionable. See, e.g.,
State v. Musleh, 8th Dist. Cuyahoga No. 105305,
2017-Ohio-8166, ¶ 36, citing Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). “An abuse of discretion also occurs when a
court ‘“applies the wrong legal standard, misapplies
the correct legal standard, or relies on clearly
erroneous findings of fact.”’” Cleveland v. Wanton,
8th Dist. Cuyahoga No. 109828, 2021-Ohio-1951, ¶
8, quoting S. Euclid v. Datillo, 2020-Ohio-4999, 160
N.E.3d 813, ¶ 8 (8th Dist.), quoting Thomas v.
Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720,
892 N.E.2d 454, ¶ 15 (8th Dist.).
{¶166} “‘A mistrial should not be ordered in a
criminal case merely because some error or
irregularity has intervened * * *.’” State v. Robinson,
8th Dist. Cuyahoga No. 110883, 2022-Ohio-1940, ¶
31, quoting State v. Reynolds, 49 Ohio App.3d 27,
550 N.E.2d 490 (2d Dist.1988), paragraph two of the
syllabus. A mistrial is warranted only when “‘the
ends of justice so require and a fair trial is no longer
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 59 of 92. PageID #: <pageID>60
possible.’” Taylor at ¶ 38, quoting Garner at 59, 656
N.E.2d 623.
{¶167} After a thorough review of the record, we
conclude that the trial court acted within its
discretion by denying Newberry’s motion.
{¶168} “It is axiomatic that in a criminal
prosecution, the prosecution bears the burden of
proof in demonstrating that the accused is guilty
beyond a reasonable doubt. Further, the prosecution
may not shift to the accused the burden of proof on
an essential element of the crime.” (Citation
omitted.) State v. Porter, 2016-Ohio-1115, 61 N.E.3d
589, ¶ 58 (8th Dist.), citing R.C. 2901.05(A) and In
re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970).
{¶169} Here, though, the context of the state’s
question makes clear that the state was clarifying
for the jury that it did not fail to investigate
Newberry’s explanation for his whereabouts on the
date of the murders. The investigators were never
provided the name of any witness to interview
regarding Newberry’s alibi. The state did not
comment on Newberry’s failure to produce alibi
witnesses during closing argument.
{¶170} Moreover, the jury was instructed that the
state bore the burden of proof and that the defense
had no burden. A jury is presumed to follow the
instructions, including curative instructions, given
to it by a trial judge. Garner at 59, 656 N.E.2d 623.
{¶171} Given the context of the prosecutor’s question
and the instructions of the trial court clarifying that
the state bore the burden of proof, we cannot say
that the trial court abused its discretion in denying
Newberry’s motion for a mistrial.
Newberry, 2023 WL 6475159, at *18–20.
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 60 of 92. PageID #: <pageID>61 To start, the Ohio court of appeals applied the correct standard of review to Newberry’s claim that the trial court erred in denying his motion for a mistrial. See Illinois v. Somerville, 410 U.S. 458, 462 (1973) (“The broad discretion reserved to the trial judge in [declaring a mistrial] has been consistently reiterated in decisions of this Court”). And on federal habeas review, “‘[t]he more general the rule’ at issue—and thus the greater the potential for reasoned disagreement among fair-minded judges—‘the more leeway [state] courts have in reaching outcomes in case-by-case determinations.” Renico v. Lett, 559 U.S. 766, 776 (2010) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) and citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Here, the Ohio court of appeals’ consideration of whether the trial court exercised “sound discretion” when ruling on a motion for mistrial implicates a “general” rule. See Lett, 559 U.S. at 776; Newberry, 2023 WL 6475159, at *19. So the leeway given to the state court’s determination is great. Lett, 559 U.S. at 776. Newberry maintains that “the prosecution’s questioning as to whether Petitioner had ever produced a list of alibi witnesses had the effect of insinuating that he had an obligation to produce such evidence or prove his innocence.” Doc. 23, at 13. But he does not discuss the Ohio court of appeals’ decision or describe why he believes that it was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington, 562 U.S. at 103. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 61 of 92. PageID #: <pageID>
62 Newberry relies on an unpublished Sixth Circuit case, United States v. Waters, No. 95-6088, 96 F.3d 1449 (6th Cir. 1996) (unpublished), in support of his argument. Id. at 13–14. He argues that the court in Waters applied the four- factor test from United States v. Drake, 885 F.2d 323 (6th Cir. 1989), and asks this Court to apply the same four-factor test to the underlying facts in his case. Id. Water and Drake were direct-appeal, Sixth Circuit cases. Neither of these cases therefore amount to Supreme Court precedent that this Court considers when evaluating under the deferential habeas standard of review the Ohio court of appeals’ decision. In any event, Newberry cannot show that he satisfies the first Drake factor, whether the prosecutor’s “comments ‘manifestly intended’ to reflect on [Newberry’s] silence or [were] of such a character that the jury would ‘naturally and necessarily’ take them as such.” Drake, 885 F.2d at 324. The Ohio court of appeals found that the state’s question intended to address the police’s efforts “to investigate Newberry’s explanation for his whereabouts on the date of the murders.” Newberry, 2023 WL 6475159, at *19. This is a reasonable reading of the record.4 See Lett, 559 U.S. at 768 (the habeas 4 The video of Newberry’s police interview was played for the jury. In the interview, Newberry said that a person called “Jamaican Shawn” had Newberry’s car during the time of the murders. But Jamaica Shawn was a fictitious name. See Newberry 2023 WL 6475159, at *14. Discussed at length at trial in a side-bar were the fictitious nature of the name Jamaican Shawn, whether evidence to establish that the name was made-up (and who made it up) would be barred as hearsay, and how the State could show that the police had followed up on the Jamaican Shawn lead. See Doc. 20-8, at 128–47, 153. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 62 of 92. PageID #: <pageID>
63 court considers possible reasonable interpretations of the record, applying deference to the state court’s interpretation). Also, relevant to the second Drake factor, the remark was isolated. 885 F.2d at 324. The trial court offered Newberry a curative instruction—which relates to another Drake factor, id. at 324—which counsel declined, Doc. 20-8, at 146. As for the remaining Drake factor, whether evidence of guilt was overwhelming, id. at 324, Newberry argues that the evidence was not overwhelming and “merely circumstantial,” Doc. 23, at 14. But he has not shown that circumstantial evidence cannot amount to overwhelming evidence. See, e.g., Durr v. Mitchell, 487 F.3d 423, 449 (6th Cir. 2007) (“circumstantial evidence is entitled to equal weight as direct evidence”). Considering the deference due under AEDPA and the trial court’s discretion in denying the motion for mistrial, Newberry has not shown that the Ohio court of appeal’s finding implicates the standard in Section 2254(d). Ground four fails on the merits and ground five is procedurally defaulted In ground four, Newberry argues that trial counsel was ineffective for failing to raise a Daubert5 challenge or to object to the admission of unauthenticated phone cell records. Doc. 19, at 11. In ground five, he alleges that “the admission of testimony as to the content of unauthenticated [cell phone] records” violated his Fifth, Sixth, and Fourteenth Amendment rights. 5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 63 of 92. PageID #: <pageID>
64
Doc. 19-1, at 1. The Ohio court of appeals considered these claims together as
follows:
{¶172} We consider Newberry’s fourth and fifth
assignments of error together because they are
intertwined. Through them, Newberry challenges
the admission into evidence of cell phone records
containing location data for Newberry’s and Gibson’s
cell phones. He contends that (1) the trial court erred
by admitting the records because the records were
not properly authenticated and (2) he was denied the
effective assistance of counsel at trial because
defense counsel did not object to the evidence on
Daubert grounds and based on the lack of
authentication.
1. The Cell Phone Records Were
Authenticated
{¶173} Because Newberry failed to object to the
admission of the cell phone records at trial, he has
forfeited all but plain error as to his authenticity
argument.
{¶174} Newberry contends that the records provided
by the cell-phone companies were never
authenticated or qualified as business records
pursuant to Evid.R. 901 or 803(6). He argues that
they should have been excluded, citing State v.
Brooks, 5th Dist. Richland No. 2011-CA-59, 2012-
Ohio-1725, and State v. Hood, 134 Ohio St.3d 595,
2012-Ohio-5559, 984 N.E.2d 929.4 He says that the
error was not harmless considering the
circumstantial nature of the state’s case.
[FN4] The Ohio Supreme Court
vacated its decision in State v. Hood,
134 Ohio St.3d 595, 2012-Ohio-5559,
984 N.E.2d 929, and replaced it with a
reconsidered opinion at State v. Hood,
135 Ohio St.3d 137, 2012-Ohio-6208,
984 N.E.2d 1057. Thus, we discuss the
reconsidered opinion below.
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 64 of 92. PageID #: <pageID>65
{¶175} The state responds that the records were
properly authenticated because Lundy testified that
he received the records from T-Mobile in response to
a search warrant and the records were accompanied
by a statement from T-Mobile confirming that fact.
The state directs us to Chagrin Falls v. Ptak, 8th
Dist. Cuyahoga No. 109342, 2020-Ohio-5623; State
v. Richardson 2016-Ohio-8081, 75 N.E.3d 831 (2d
Dist.) and Brecksville v. Sadaghiani, 8th Dist.
Cuyahoga No. 109992, 2021-Ohio-2443.
{¶176} Evid.R. 901(A) addresses the authentication
or identification of evidence prior to its admissibility.
Evid.R. 901(A) states: “The requirement of
authentication or identification as a condition
precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in
question is what its proponent claims.” This
requirement is a “‘a low threshold.’” State v. Rogers,
8th Dist. Cuyahoga No. 105879, 2018-Ohio-3495, ¶
15, quoting State v. Maust, 8th Dist. Cuyahoga No.
103182, 2016-Ohio-3171, ¶ 24. It “‘does not require
conclusive proof of authenticity, but only sufficient
foundation evidence for the trier of fact to conclude
that the evidence is what its proponent claims it to
be.’” Rogers at ¶ 15, quoting Maust at ¶ 24. The
proponent of the evidence must demonstrate a
“‘reasonable likelihood’ that the evidence is
authentic, which may be supplied by the testimony
of a witness with knowledge.” State v. Roseberry, 197
Ohio App.3d 256, 268, 2011-Ohio-5921, 967 N.E.2d
233, ¶ 65 (8th Dist.), quoting State v. Bell, 12th Dist.
Clermont No. CA2008-05-044, 2009-Ohio-2335, ¶ 30;
State v. Wright, Dist. Clermont No. 28831, 2021-
Ohio-2133, at ¶ 77.
{¶177} In the context of a business record, a
“‘qualified witness’ * * * would be someone with
‘enough familiarity with the record-keeping system
of the business in question to explain how the record
came into existence in the ordinary course of
business.’” Hood, 135 Ohio St.3d 137 at ¶ 40, 984
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 65 of 92. PageID #: <pageID>66
N.E.2d 1057, quoting 5 McLaughlin, Weinstein’s
Federal Evidence, Section, 803.08[8][a] (2d Ed.2009).
{¶178} Here, Lundy testified that the cell-phone
records were obtained directly from T-Mobile
through a court-issued search warrant. The records
were admitted into evidence along with a statement
from T-Mobile that the records were being produced
“in response to the Search Warrant * * * dated
November 05, 2018.”
{¶179} Moreover, the state presented the testimony
of Jacob Kunkle, an FBI special agent who received
specialized training in locating cell phones based on
the records of cellular-communications providers.
He is one of only approximately 80 special agents in
the country on the FBI’s Cellular Analysis Survey
Team. To qualify for that specialized team, Kunkle
underwent 400 hours of training with various
cellular-communications providers, learning from
the providers’ records custodians and radio
engineers. After that training, Kunkle passed a
practical examination on the subject. He has
performed thousands of location analyses in his
career.
{¶180} Kunkle testified in detail about how
communications providers record data about
communications that occur from a particular cell
phone, identifying the cell-phone tower and sector
used. He explained how this data is used to locate a
cell phone within an area as large as several square
miles. He described the limitations of the
technology, too, noting that a cell phone does not
always select the closest tower when making a
communication connection. He frankly admitted
that the analysis was only “a piece to the puzzle” and
that one cannot “precisely locate someone” using the
providers’ location data. He said the analysis “just
gives you a general idea of where the phone was and
whether it was in a particular area on a given date
and time.” Moreover, he admitted that he has “no
knowledge of who possessed the phone on a given
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 66 of 92. PageID #: <pageID>67
date or time” and that the analysis does not identify
the content of any communications.
{¶181} We find that Agent Kunkle is sufficiently
familiar with the record-keeping system of T-Mobile
to be a qualified witness for purposes of Evid.R.
803(6). See State v. Johnson, 2022-Ohio-4344, 203
N.E.3d 78, ¶ 104–108 (5th Dist.). This testimony,
when combined with Lundy’s testimony that the
records were obtained from T-Mobile through a
search warrant and the statement in the records
confirming that the records were produced pursuant
to the warrant, was sufficient to overcome the low
threshold of authentication. See Chagrin Falls v.
Ptak, 8th Dist. Cuyahoga No. 109342, 2020-Ohio-
5623, ¶ 21.
2. Trial Counsel Was Not Ineffective
{¶182} “Failing to file a motion to suppress does not
constitute ineffective assistance of counsel per se.”
State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837,
873 N.E.2d 858, ¶ 65. “To establish ineffective
assistance of counsel for failure to file a motion to
suppress, a defendant must prove that there was a
basis to suppress the evidence in question.” Id.
{¶183} Newberry contends that his defense counsel
should have challenged the reliability of the cell
phone records’ location data pursuant to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He further
argues that his counsel should have objected to the
records’ admission because of a lack of foundation.
{¶184} In Daubert, the United States Supreme Court
held that the trial court must act as a “gatekeeper”
to ensure both the relevancy and reliability of expert
scientific testimony before admitting it. The Ohio
Supreme Court adopted the Daubert approach to
determining the reliability of expert scientific
testimony in Miller v. Bike Athletic Co., 80 Ohio
St.3d 607, 687 N.E.2d 735 (1998).
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 67 of 92. PageID #: <pageID>68
{¶185} This court has previously held, however, that
“testimony concerning a defendant’s cell phone
records and the location of the cellular towers used
by a defendant’s phone in relation to locations
relevant to the crime constitutes lay opinion
testimony that does not require ‘specialized
knowledge, skill, experience, training, or education’
regarding cellular networks.” State v. Wilson, 8th
Dist. Cuyahoga No. 104333, 2017-Ohio-2980, ¶ 30,
citing State v. Daniel, 2016-Ohio-5231, 57 N.E.3d
1203, ¶ 69 (8th Dist.). We further noted that a
Daubert analysis would be appropriate to the extent
that a witness exceeded simply detailing the
defendant’s phone records and which cellular towers
were used. Wilson at ¶ 31.
{¶186} Because Agent Kunkle only testified about
the cell phone records of Gibson and Newberry and
the location of the cellular towers used by their
phones in relation to the locations relevant to the
crimes, his testimony was admissible as lay
testimony and Newberry has failed to demonstrate
prejudice. We find that trial counsel’s decision not to
challenge the evidence was a tactical decision and
the product of trial strategy. See also State v. Sands,
11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981, ¶
108 (noting that the decision to raise a Daubert
challenge is a matter of trial strategy).
Newberry, 2023 WL 6475159, at *20–22.
Ground four fails on the merits
In support of his claim that trial counsel was ineffective for failing to
raise a Daubert challenge, Newberry submits that “federal case law
overwhelmingly supports the position that testimony involving complex
scientific analysis of cell site data constitutes expert testimony subject to
Daubert scrutiny,” and that “such testimony is not admissible as lay opinion
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 68 of 92. PageID #: <pageID>69 testimony.” Doc. 23, at 14. In support, Newberry relies on out-of-circuit federal cases and a state-court decision from Texas. Id. at 17–18. Here, the question is whether trial counsel was ineffective for not raising a Daubert challenge. When evaluating counsel’s performance, the court views the challenged “conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. As the Ohio court of appeals observed, it had held, years before Newberry’s case, that testimony about cell phone records and the location of the cellular towers those phones used “is lay opinion testimony that does not require ‘specialized knowledge, skill, experience, training, or education’ regarding cellular networks.” State v. Daniel, 57 N.E.3d 1203, 1218 (Ohio Ct. App. 2016); see Newberry, 2023 WL 6475159, at *22. Appellate courts in other districts in Ohio have come to the same conclusion. See, e.g., State v. Baker, 166 N.E.3d 601, 615 (Ohio Ct. App. 2020) (the Ohio Court of Appeals for the Seventh District following the reasoning in Daniel and explaining that appellate courts in the Fourth, Sixth, Eighth, and Eleventh Districts of Ohio had also done so or had previously arrived at the same conclusion). This is relevant because “[t]he failure to raise a meritless claim does not constitute ineffective assistance of counsel.” Tackett v. Trierweiler, 956 F.3d 358, 375 (6th Cir. 2020). Any Daubert challenge to the cell-phone location testimony at Newberry’s trial therefore would have failed, based on the binding case law in Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 69 of 92. PageID #: <pageID>
70 the Eighth District of Ohio. So counsel was not ineffective for not raising a Daubert challenge. See Tackett, 956 F.3d at 375. Newberry states that “the testimony in [his] case went beyond” what the Ohio court of appeals had previously accepted as lay testimony. Doc. 23, at 18. He asserts that “Kunkle testified that he could accurately determine direction of travel of the phone.” Id. (citing Doc 20-7, at 86). The transcript shows that Kunkle testified that in a specified time period, the phone in question received 51 calls and indicated that it was in the Bedford area. Doc. 20-7, at 85–86. When asked about the next two-hour period, Kunkle stated that the phone “moved back to the North, … from the Maple Heights area where it used a tower … up into the Cleveland area.” Id. at 86. Newberry has not articulated why Kunkle describing one tower as being “north” of another is problematic. See also Daniel, 57 N.E.3d at 1218 (finding that a crime analyst’s testimony about the defendant’s cell phone records and location of the cell towers it used “in relation to other locations relevant to the crime,” including a map the analyst created showing these locations, was lay testimony not subject to a Daubert analysis); State v. Dunn, No. 101648, 2015 WL 4656534, at *7 (Ohio Ct. App. Aug. 6, 2015) (“Agent Braunschweiger testified about the map she created plotting information she received about the cell tower information appearing on the subpoenaed phone records….[A] layperson could compare the locations depicted on the records to the corresponding location on the site map.”). Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 70 of 92. PageID #: <pageID>
71 As for the cell-phone-records authentication question, Newberry contends that Ohio Rule of Evidence “803(6) requires authentication by a custodian or other qualified witness.” Doc. 19-2, at 10. But he does not explain what he believes was unreasonable under Supreme Court precedent about the Ohio court of appeals’ finding that the testimony of Kunkle and Lundy sufficiently authenticated these records. In all, Newberry hasn’t shown that “every ‘“fairminded juris[t]”’ would agree that every reasonable lawyer would have made a different decision” than the one his trial counsel made. See Dunn, 594 U.S. at 739–40 (quoting Harrington, 562 U.S. at 101); see Mays v. Hines, 592 U.S. 385, 392 (2021) (put differently, “[a]ll that mattered was whether the [state] court … managed to blunder so badly that every fairminded jurist would disagree”) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Ground four fails on the merits. Ground five is procedurally defaulted Because Newberry’s counsel did not object to the admission of the cell phone records at trial, the Ohio court of appeals applied plain-error review to Newberry’s authentication claim. Newberry, 2023 WL 6475159, at *20. When it did, it applied Ohio’s long-standing contemporaneous objection rule, which is an independent and adequate state ground that precludes federal habeas review. See Scott, 209 F.3d 854 at 871. Newberry has not alleged cause, prejudice, or actual innocence to excuse the procedural default. Ground five is procedurally defaulted. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 71 of 92. PageID #: <pageID>
72
Ground six fails on the merits
In ground six, Newberry raises a Confrontation Clause claim. Doc. 19-1,
at 1. He submits that he right to confrontation was violated when state witness
“Quiana Gilbert testified that she ‘understood’ her boyfriend to have been with
Newberry the night of the homicide” based on her phone communication with
Gibson. Id. The Ohio court of appeals rejected Newberry’s claim, as follows:
{¶187} Newberry contends that the trial court erred
in admitting, over objection, Quiana Gilbert’s
statement that it was her understanding that
Gibson was with Newberry overnight on the night of
the murders.
{¶188} The Sixth Amendment to the U.S.
Constitution provides in relevant part that “[i]n all
criminal prosecutions, the accused shall enjoy the
right * * * to be confronted with the witnesses
against [the accused].” The United States Supreme
Court held that the Confrontation Clause bars
“admission of testimonial statements of a witness
who did not appear at trial unless [the witness] was
unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.” Crawford
v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004).
{¶189} Here, though, there is no out-of-court
testimonial statement. Quiana Gilbert testified that
it was her understanding that Gibson was with
Newberry throughout the night of the crimes. It was
established that Gilbert was communicating with
Gibson over the phone that night. But the state did
not elicit testimony from Gilbert that Gibson told
her that he was with Newberry.
{¶190} Because Gilbert did not testify about what
Gibson told her on the phone that evening, there is
no out-of-court statement that could be considered
hearsay and there is no Confrontation Clause issue.
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 72 of 92. PageID #: <pageID>73 Newberry, 2023 WL 6475159, at *22. Newberry maintains that “admission of the statements of Petitioner’s co-defendant through Gilbert were prejudicial resulting in a trial that was fundamentally unfair.” Doc. 23, at 22. But he does not identify any “statements” made by his co-defendant that Gilbert testified about. He ignores the Ohio court of appeals’ finding that Gilbert did not testify about any of Gibson’s statements, and that, as a result, the Confrontation Clause is not implicated. Newberry has not shown that the Ohio court of appeals’ finding was unreasonable under Supreme Court precedent. See, e.g., Crawford v. Washington, 541 U.S. 36, 68–69 (2004) (“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”) (emphasis added). A portion of ground seven is not cognizable and procedurally defaulted, and the remainder fails on the merits In ground seven, Newberry argues that Detective Lundy, who testified at trial, improperly identified Newberry from gas station surveillance video. Doc. 19-1, at 1. Newberry alleges that this error implicated the following constitutional violations: it “invaded the providence of the jury in violation of Due Process protections,” the “trial court erred in permitting such testimony,” “trial counsel was ineffective for failing to object to the testimony which violated the Sixth Amendment, and the state engaged in misconduct for Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 73 of 92. PageID #: <pageID>
74
soliciting the improper identification.” Id. The Ohio court of appeals considered
this claim as follows
{¶191} Newberry contends that the trial court erred
by admitting Captain Lundy’s testimony identifying
Newberry as one of the individuals captured by gas
station security cameras on the night of the
shooting. He further argues that his counsel was
ineffective for failing to object to the identification
testimony.
{¶192} Lundy identified Newberry in security-
camera footage captured between 12:41 a.m. and
12:48 a.m. on the day of the murders. Gilbert also
identified Newberry in that footage.
{¶193} In Gibson’s trial, Lundy mistakenly identified
Newberry in recordings captured later that
morning. But, contrary to what Newberry suggests,
Lundy did not make the same mistake in Newberry’s
trial. To the contrary, Lundy admitted that
Newberry does not appear on any of the gas-station
security footage from later in the morning of October
10. He further admitted that he had previously
identified, under oath, one of the people in those
recordings as Newberry, and that he had been
mistaken.
{¶194} Lundy was familiar with Newberry because
he participated in Newberry’s interview. Moreover,
Gilbert also identified Newberry in the recordings.
{¶195} There is no merit to Newberry’s seventh
assignment of error.
Newberry, 2023 WL 6475159, at *22–23.
Newberry has not disputed the Ohio court of appeals’ finding that
Lundy’s misidentification of Newberry did not happen at Newberry’s trial. See
also Doc. 20-4, at 10, 13–15 (the parties’ discussion with the trial court about
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 74 of 92. PageID #: <pageID>75 Lundy’s misidentification of Newberry at Gibson’s trial). So Newberry’s claims that rely on Lundy’s misidentification of him at Newberry’s trial fail. Next, Newberry alleges that Lundy at trial “improperly identified [Newberry] in a grainy gas station video” “without laying any proper foundation.” Doc. 23, at 23. He contends that “Lundy’s testimony lacked any indicia of contemporaneous familiarity with [Newberry], nor any unique or specialized ability to make a visual match.” Id. Newberry argues that the Ohio court of appeals “improperly found that Lundy had prior familiarity with Newberry since he interviewed him prior to trial.” Id. at 24. “[E]rrors in application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus.” Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); see Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (a federal habeas court does not “reexamine state-court determinations on state-law questions,” including the admissibility of evidence). “When an evidentiary ruling is so egregious that it results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). To rise to the level of a due process violation, a state-court evidentiary ruling must “offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996), in turn quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 75 of 92. PageID #: <pageID>
76 Here, Newberry has not challenged the Ohio court of appeals’ finding that Lundy “was familiar with Newberry because he participated in Newberry’s interview.” Newberry, 2023 WL 6475159, at *23. He has not shown that Lundy’s identification of him in the gas station video “offend[s] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Seymour, 224 F.3d at 552; see also United States v. Houston, 813 F.3d 282, 287, 291–92 (6th Cir. 2016) (no error when the trial court permitted a special agent at trial to identify the defendant in a poor- quality video when the agent was familiar with the defendant because he had “personally observ[ed]” him). As for any ineffectiveness-of-counsel claim, even if it could be said that counsel was ineffective for failing to object, Newberry has not shown that he was prejudiced, since Gilbert also identified Newberry from the gas station video. Grounds eight and nine fail on the merits Grounds eight and nine involve an alleged conflict of interest involving Newberry’s trial counsel.6 In ground eight, Newberry argues that the trial court erred when it inquired into the nature and extent of counsel’s alleged conflict, and in ground nine, Newberry alleges that the trial court “abused its discretion when it failed to disqualify defense counsel absent a knowing, 6 Newberry’s Amended Petition references “appellate” counsel, Doc. 19-1, at 1, but Newberry discusses his trial counsel’s alleged conflict. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 76 of 92. PageID #: <pageID>
77 voluntary, intelligent waiver which violated Due Process and Sixth Amendment rights to unconflicted representation.” Doc. 19-1, at 1–2. For context, at trial the court and the parties discussed this issue one morning before trial: [Prosecutor]: Procedurally, Your Honor, I’m not sure how this would function but, we had discussed several times off the record with [defense counsel], his prior representation of Detective Marche and others in East Cleveland. I think it was a civil matter. I think it’s advisable at this time that we go on the record and waive any potential conflicts. I’m just not sure where we landed on whose conflict that may be. [Defense counsel]: Well, Judge, I can—I don’t even view it as a conflict. I mean, but be that as it may, I have represented in the past Mr. Marche, Detective Marche, now Commander Marche, right? Detective Marche: Yes, Sir. [Counsel]: And, like, three other East Cleveland folks. Personally, they were already represented by the law department, and it was a civil matter where somebody, a citizen, had brought an action again East Cleveland’s police department for not being accredited, for not having their shooting records in line or qualifying records, not having their continuing education, things like that. The case was ultimately dismissed … I had actually filed a motion to withdraw before it got dismissed. In that representation, I think I talked to the chief of police once. I don’t think I ever talked to Commander Marche about it. I just simply gathered records from BCI, and from the—from the police academy in Columbus and gave those to the Court, but that’s it. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 77 of 92. PageID #: <pageID>
78
Nothing about this case or any other case, for
that matter, was ever discussed. I’ve other cases
against the Commander where I’ve cross-examined
him. I have no problem doing my job in this case. I
didn’t learn anything from that representation
about my client or any other client, for that matter.
Thank you.
[Trial court]: Mr. Newberry, is that okay with you?
After that’s all been disclosed, are you okay?
[Newberry]: Yes.
[Trial court]: Okay. Anything further for the record?
[Prosecutor]: Not on behalf of State, Judge.
[Counsel]: No, thank you, Judge.
Doc. 20-4, at 15–17.
The Ohio court of appeals discussed Newberry’s claims as follows:
{¶196} We address Newberry’s eighth and ninth
assignment of error together because they are
intertwined. Through them, Newberry contends
that one of his defense counsel had a conflict of
interest based on counsel’s former representation of
[Detective] Marché and other East Cleveland law-
enforcement officers. He asserts that his counsel
should have been disqualified from representing him
at trial.
{¶197} “The fundamental right to counsel includes a
‘correlative right to representation free from
conflicts of interest.’” State v. Williams, 166 Ohio
St.3d 159, 2021-Ohio-3152, 184 N.E.3d 29, ¶ 6,
quoting State v. Gillard, 64 Ohio St.3d 304, 311, 595
N.E.2d 878 (1992). “‘Both defense counsel and the
trial court are under an affirmative duty to ensure
that a defendant’s representation is conflict-free.’”
Williams at ¶ 6, quoting State v. Dillon, 74 Ohio
St.3d 166, 167–168, 1995-Ohio-169, 657 N.E.2d 273
(1995).
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 78 of 92. PageID #: <pageID>79
{¶198} Here, the nature of defense counsel’s former
representation of one of the state witnesses was fully
disclosed, defense counsel stated that the former
representation presented no conflict of interest and
the trial court asked Newberry if he was comfortable
proceeding to trial with that counsel. Newberry said
that he was.
{¶199} Newberry has not shown that this consent
was anything but informed and voluntary. Further,
he has not shown that counsel’s former
representation presented an actual conflict of
interest or that counsel’s performance was adversely
affected by the previous representation. See
Williams at ¶ 8.
{¶200} Appellant’s eighth and ninth assignments of
error are without merit.
Newberry, 2023 WL 6475159, at *23.
Newberry objects to the Ohio court of appeals’ finding that his trial
counsel did not have an actual conflict. Doc. 23, at 27. He argues that there
was an actual conflict because the “representation was pursuant to his official
capacity as an employee of the East Cleveland Police Department, and the
detective who led the investigation against Petitioner Newberry.” Doc. 23, at
27. But Newberry doesn’t explain how the fact that Marche was an East
Cleveland employee has any bearing on the conflict analysis. He discusses
United States v. James, 708 F.2d 40 (2nd Cir. 1983), Doc. 23, at 26, but that
case is not on point. In James, a man called Barnes “was an organizer and boss
of a large narcotics organization.” 708 F.2d at 42. Barnes and co-defendants
were convicted of numerous narcotics charges. Id. A few years later, James,
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 79 of 92. PageID #: <pageID>80 “[a] long-time and close associate[] of Barnes in the narcotics business,” was also charged with violating numerous narcotics laws. Id. Barnes helped the government with the case against James and the government noticed its intent to call Barnes at James’s trial. Id. Meanwhile, James was represented by attorneys who had worked with Barnes’s attorney in his case and had represented Barnes’s co-defendants. Id. The government and Barnes sought to disqualify the attorneys from representing James, and the district court granted the motion. Id. at 43. In affirming the trial court’s ruling, the Second Circuit commented that Barnes objected to the representation, and that, furthermore: the findings that the present issues are substantially related to the subject matter of the past representation, and that defense counsel quite likely have received confidential information from the witness, together with the court’s conclusion that the witness’s interests cannot adequately be safeguarded by the court, have a serious impact on the interests of the government and of the public. James, 708 F.2d at 45–46. Here, the issues in Newberry’s case were not “substantially related” to the civil case involving Marche. Marche did not object to the representation. Marche did not testify at Newberry’s trial. And it was not “quite likely” that counsel had received confidential information from Marche; indeed, counsel said that when he represented the city’s officers he had not spoken to Marche and that he “simply gathered” records and provided them to the court. Doc. 20- 4, at 16. So none of the facts that the court relied on to disqualify the attorney Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 80 of 92. PageID #: <pageID>
81 in James are present in this case. Moreover, James is not Supreme Court precedent. Newberry hasn’t identified a Supreme Court case that the Ohio court of appeals ran afoul of. In his Traverse, Newberry cites the records he obtained and submitted with his postconviction petition in support of his claim that his counsel’s former representation of Marche amounted to an unwaivable conflict. Doc. 23, at 27; Doc. 20-1, at 324. But any related claim that Newberry raised in his postconviction petition is procedurally defaulted because Newberry didn’t appeal the Ohio court of appeals’ rejection of his claim to the Ohio Supreme Court. See Williams, 460 F.3d at 806 (a petitioner must raise a claim in state court “and pursue that claim through the state’s ‘ordinary appellate review procedures’”). Moreover, the Ohio court of appeals agreed with the trial court that Newberry’s claim was barred by the doctrine of res judicata because Newberry could have, and did, raise the issue on direct appeal. State v. Newberry, 2025 WL 1588498, at *3–4 (Ohio Ct. App. June 5, 2025). This is a separate reason why Newberry’s related claim that he raised in his postconviction petition is procedurally defaulted. See Coleman v. Mitchell, 268 F.3d 417, 427 (6th Cir. 2001) (claims raised in a post-conviction petition that the state court denies on the basis of res judicata are procedurally defaulted) (citing State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967)). Newberry has not alleged cause, prejudice, or actual innocence to overcome the procedural default. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 81 of 92. PageID #: <pageID>
82 Next, Newberry argues that his waiver of the conflict was not knowing, voluntary, or intelligent. Doc. 19-1, at 2. He asserts that “[f]ederal case law overwhelmingly supports the position that a defendant’s one-word affirmation following a vague disclosure of defense counsel’s prior representation of a key investigator is insufficient to constitute a knowing and intelligent waiver of the right to conflict-free counsel.” Doc. 23, at 28. But Newberry has not identified pertinent case law that supports his statement. He cites United States v. Ross, 33 F.3d 1507, 1522 (11th Cir. 1994), which, like James, involved attorneys and their firms representing different defendants who were charged with similar and related crimes in which one defendant testified at the other defendant’s trial. Moreover, Ross does not represent a holding of the United States Supreme Court. Newberry complains that the trial court accepted his “one- word affirmation,” Doc. 23, at 28, but doesn’t say how many words he believes the court should have required. He characterizes his counsel’s “vague disclosure … of prior representation,” id., but doesn’t say what about counsel’s explanation was vague. To the extent counsel’s description of his participation in representing Detective Marche in a civil lawsuit could be considered “vague,” this was due to the fact that counsel had very little to do with Marche’s case, as he explained. Doc. 20-4, at 16–17. Newberry has not shown that the Ohio court of appeals’ decision on this issue was unreasonable. Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 82 of 92. PageID #: <pageID>
83 Ground ten fails on the merits In ground ten, Newberry argues that the State “failed to present sufficient evidence to prove each and every element of the offenses beyond reasonable doubt.” Doc. 19-1, at 2. When reviewing a claim that a petitioner’s conviction is not supported by sufficient evidence, the court asks “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Cavazos v. Smith, 565 U.S. 1, 7 (2011). The court defers to the trier-of-fact’s determination. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). The standard is not whether the trier-of-fact made the correct guilt or innocence determination, but whether it made a rational decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 402 (1993). On federal habeas review, an additional layer of deference applies. Brown, 567 F.3d at 205; see Coleman v. Johnson, 566 U.S. 650, 651 (2012). So even if this Court were to conclude that a rational trier-of-fact could not have found Newberry guilty beyond a reasonable doubt, the Court “must still defer to the state appellate court’s sufficiency determination as long as it is not unreasonable.” Brown, 567 F.3d at 205; see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). The Ohio court of appeals considered this claim, along with Newberry’s manifest weight claim, as follows: Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 83 of 92. PageID #: <pageID>
84
{¶201} We address Newberry’s tenth and eleventh
assignments of error together. Newberry contends
that the state did not present sufficient evidence
with respect to any count for which he was found
guilty and he says that the trial court should,
therefore, have granted his Crim.R. 29(A) motion for
acquittal on each count. He further contends that his
convictions were against the manifest weight of the
evidence.
{¶202} While Newberry challenges every count for
which he was found guilty, any error with respect to
the sufficiency or manifest weight of the evidence on
the felonious-assault, murder, aggravated-arson
and aggravated-murder-under-R.C. 2903.01(B)
counts is harmless beyond a reasonable doubt
because those counts were merged into aggravated
murder under R.C. 2901.01(A) at sentencing. See
State v. Ramos, 8th Dist. Cuyahoga No. 103596,
2016-Ohio-7685, ¶ 14 (“When counts in an
indictment are allied offenses, and there is sufficient
evidence to support the offense on which the state
elects to have the defendant sentenced, the appellate
court need not consider the sufficiency of the
evidence on the count that is subject to merger
because any error would be harmless * * *.”), citing
State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d
191 (1990).
{¶203} Therefore, in addressing these assignments
of error, we consider only whether the convictions for
aggravated murder under R.C. 2901.03(A),
kidnapping, aggravated burglary and having
weapons under disability were supported by
sufficient evidence and were not against the
manifest weight of the evidence.
{¶204} A challenge to the sufficiency of the evidence
supporting a conviction requires a determination of
whether the state has met its burden of production
at trial. State v. Hunter, 8th Dist. Cuyahoga No.
86048, 2006-Ohio-20, ¶ 41, citing State v.
Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541
(1997). Whether the evidence is legally sufficient to
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 84 of 92. PageID #: <pageID>85
support a verdict is a question of law. Thompkins at
386, 678 N.E.2d 541.
{¶205} An appellate court’s function when reviewing
the sufficiency of evidence to support a criminal
conviction is to examine the evidence admitted at
trial to determine whether such evidence, if
believed, would convince a reasonable juror of the
defendant’s guilt beyond a reasonable doubt. Id.; see
also State v. Bankston, 10th Dist. Franklin No.
08AP-668, 2009-Ohio-754, ¶ 4 (noting that “in a
sufficiency of the evidence review, an appellate court
does not engage in a determination of witness
credibility; rather, it essentially assumes the state’s
witnesses testified truthfully and determines if that
testimony satisfies each element of the crime.”). We
must determine “‘whether, after viewing the
evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the
essential elements of the crime proven beyond a
reasonable doubt.’” State v. Leonard, 104 Ohio St.3d
54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
* * *
{¶208} The elements of an offense may be proven by
direct evidence, circumstantial evidence, or both.
See, e.g., State v. Wells, 8th Dist. Cuyahoga No.
109787, 2021-Ohio-2585, ¶ 25, citing State v. Durr,
58 Ohio St.3d 86, 568 N.E.2d 674 (1991).
Circumstantial evidence and direct evidence have
“equal evidentiary value.” Wells at ¶ 26, citing State
v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-
Ohio-1691, ¶ 12.
{¶209} A person commits aggravated murder under
R.C. 2903.01(A) by purposely causing the death of
another with prior calculation and design. R.C.
2903.01(A). “The element of prior calculation and
design ‘require[s] a scheme designed to implement
the calculated decision to kill.’” State v. McFarland,
162 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316,
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 85 of 92. PageID #: <pageID>86
¶ 31, quoting State v. Cotton, 56 Ohio St.2d 8, 11,
381 N.E.2d 190 (1978).
{¶210} A person commits kidnapping under R.C.
2905.01(A)(3) by, through force, threat or deception,
removing another person from the place where the
other person is found or by restraining the liberty of
that person, for the purpose of terrorizing or
inflicting serious physical harm to anyone. R.C.
2905.01(A)(3).
{¶211} A person commits aggravated burglary under
R.C. 2911.11(A)(1) by trespassing, by force, stealth
or deception, in an occupied structure while someone
is present in the structure with the purpose to
commit in the structure any criminal offense where
the offender inflicts, or attempts or threatens to
inflict physical harm on another.
{¶212} A person commits the crime of having
weapons while under disability by knowingly
acquiring, having, carrying or using any firearm if
the person has been convicted of certain felony
offenses. R.C. 2923.13(A)(3). In order to “have” a
firearm, an individual must either actually or
constructively possess it. E.g., State v. Adams, 8th
Dist. Cuyahoga No. 93513, 2010-Ohio-4478, ¶ 16.
{¶213} Here, the fact that these crimes were
committed is not in dispute. Newberry instead
argues that the state did not offer sufficient evidence
to prove beyond a reasonable doubt that he
committed those crimes or was complicit in their
commission. Our court has held that a person who
aids and abets a principal offender in the
commission of a crime constructively possesses a
firearm possessed solely by the principal offender.
See, e.g., Adams at ¶ 19 (collecting cases); but see
State v. Lewis, 2d Dist. Greene No. 96CA12, 1997
WL 156596, 1997 Ohio App. LEXIS 1316 (Apr. 4,
1997).
{¶214} Ohio’s complicity statute, R.C. 2923.03,
states as follows:
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(A) No person, acting with the kind of
culpability required for the commission
of an offense, shall do any of the
following:
(1) Solicit or procure another to
commit the offense;
(2) Aid or abet another in
committing the offense;
(3) Conspire with another to
commit the offense in violation of
section 2923.01 of the Revised Code;
(4) Cause an innocent or
irresponsible person to commit the
offense.
{¶215} To “aid or abet” is to “‘assist or facilitate the
commission of a crime, or to promote its
accomplishment.’” State v. McFarland, 162 Ohio
St.3d 36, 2020-Ohio-3343, 164 N.E.3d 316, ¶ 26,
quoting State v. Johnson, 93 Ohio St.3d 240, 243,
754 N.E.2d 796 (2001). R.C. 2923.03(F) provides that
a person who violates the complicity statute “shall
be prosecuted and punished as if he were the
principal offender.”
{¶216} As the Ohio Supreme Court recently
described:
“To support a conviction for complicity
by aiding and abetting pursuant to R.C.
2923.03(A)(2), the evidence must show
that the defendant supported, assisted,
encouraged, cooperated with, advised,
or incited the principal in the
commission of the crime, and that the
defendant shared the criminal intent of
the principal.” Johnson at syllabus.
“‘Participation in criminal intent may
be inferred from presence,
companionship and conduct before and
after the offense is committed.’” Id. at
245, 754 N.E.2d 796, quoting State v.
Pruett, 28 Ohio App.2d 29, 34, 273
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 87 of 92. PageID #: <pageID>88
N.E.2d 884 (4th Dist.1971).
McFarland at ¶ 29.
{¶217} The question here, then, is whether there was
sufficient evidence presented for a rational trier of
fact to find beyond a reasonable doubt that
Newberry committed or was complicit in the crimes
committed against Paul and P.B.
{¶218} While the state’s case was admittedly
circumstantial, we find that there was sufficient
evidence to support Newberry’s convictions based on
his participation or complicity in the scheme to rob,
kidnap and murder Paul and P.B.
{¶219} Newberry associated with Gibson and
Sheeley in the summer and into the fall of 2018.
Three weeks before the murders, Newberry
purchased the dark blue Ford Edge that would be
used throughout these crimes. He directed that the
car be registered in someone else’s name and he
caused the windows of the vehicle to be tinted.
Newberry returned the vehicle to the dealership less
than three weeks after the murders. The car had
been detailed before it was returned, rendering
certain forensic tests futile. In light of the other
evidence in the case, a rational trier of fact could
conclude that Newberry procured, altered, cleaned
and returned the car in the ways he did to assist in
the commission of the robbery–murder scheme.
{¶220} The evidence supports a conclusion that
Newberry was involved in the scheme in other ways,
too. Newberry and Sheeley were with Gibson at
around 3 p.m. on October 9, 2018, the day before the
murders, driving Gilbert to work. Newberry was
captured on surveillance footage entering his Ford
Edge at a gas station near to the presumed murder
scene, with Gibson, at 12:48 a.m. on October 10,
2018. The two leave the parking lot in the vehicle,
together.
{¶221} Gibson’s phone moved from East Cleveland to
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 88 of 92. PageID #: <pageID>89
Bedford between 2 a.m. and 4 a.m.; a witness
described seeing a dark-colored vehicle driving
slowly past Paul B.’s home in the early morning
hours of October 10. Gibson’s phone is in Bedford
between 4 a.m. and 6 a.m. While Newberry’s phone
shows no activity during this time, DNA collected
from an examination glove in Paul B.’s home
matched Newberry’s DNA; a match was 182,000
times more probable than a coincidence. When
Newberry’s car was swabbed later, there was
positive match support found for P.B.’s DNA in the
rear seat on the armrest. Swabs taken from the car
also tested positive for gasoline and a medium
petroleum distillate, the same kind of accelerants
that were found spilled throughout Paul B.’s home.
Items of value from Paul’s home had been stolen and
were later seen in Gibson’s possession.
{¶222} Between 6 a.m. and 8 a.m., Gibson’s phone
moved into the East Cleveland area. When
Newberry’s phone next pinged off a cell tower at 6:55
a.m., it was in the East Cleveland area. Between
that time and 8:30 a.m., Newberry’s and Gibson’s
phones used the same side of the same cell tower,
indicating that they were in the same general area
at the same time. Newberry’s car is seen on the gas
station surveillance video at 7:40 a.m. and 7:47 a.m.
At the latter time, the vehicle is traveling through
the parking lot in the direction of Wadena Avenue.
Newberry’s car is seen on surveillance from a home
on Wadena Avenue, traveling with Paul’s rental car.
{¶223} Gibson is seen on surveillance footage
bringing the gas can from the direction of Wadena
Avenue to the gas station. He is recorded making a
phone call from the gas station, and records show
that he was talking with Newberry’s phone. Gibson
then exits the gas station, walking in the direction
of Wadena Avenue and the vacant lot where Paul’s
burning car would be found later that morning. P.B.
had been shot to death and Paul had been struck on
the head and then burned alive.
{¶224} When Newberry was interviewed by police,
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 89 of 92. PageID #: <pageID>90
he claimed that a “Jamaican Shawn” had his car and
phone that entire night. Police later determined that
no such person exists.
{¶225} These facts support the inference that
Newberry was “more than a mere bystander” in
these crimes. See State v. High, 2018-Ohio-2236, 115
N.E.3d 702, ¶ 34 (8th Dist.); State v. Riley, 8th Dist.
Cuyahoga No. 107073, 2019-Ohio-981, ¶ 46.
{¶226} This evidence is sufficient for a rational trier
of fact to conclude, beyond a reasonable doubt, that
Newberry either committed or assisted and
facilitated these offenses.
Newberry, 2023 WL 6475159, at *23–27.
Newberry complains that “[a]ll of the evidence presented against [him]
was circumstantial and lacking reliability.” Doc. 19-1, at 2; Doc. 23, at 30–32.
But “[c]ircumstantial evidence alone is sufficient to support a conviction, and
it is not necessary for the evidence to exclude every reasonable hypothesis
except that of guilt.” Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)
(internal quotations and citations omitted); see Durr, 487 F.3d at 449
(“circumstantial evidence is entitled to equal weight as direct evidence”). As
for Newberry’s claim that the evidence lacked reliability, this Court does “not
reweigh the evidence, re-evaluate the credibility of witnesses, or substitute
[its] judgment for that of the jury.” Brown, 567 F.3d at 205; see also Matthews
v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
Newberry argues that in finding sufficient evidence of guilt, the Ohio
court of appeals relied on isolated, lawful acts—“(1) purchasing a vehicle, (2)
registering a vehicle under his mother’s name, (3) tinting car windows, (4)
Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 90 of 92. PageID #: <pageID>91 detailing the vehicle, (5) driving his car to a gas station in the East Cleveland area, and (6) utilizing cell towers in the East Cleveland area where he resided at the time of the homicides.” Doc. 23, at 30. But the court reviews the entire record “in the light most favorable to the prosecution,” and asks if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see Cavazos, 565 U.S. at 7 (“a reviewing court ‘faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution’”) (quoting Jackson, 443 U.S. at 326). This is what the Ohio court of appeals did, Newberry, 2023 WL 6475159, at *24, 26–27, and its sufficiency determination was not unreasonable under Supreme Court precedent. Conclusion For the reasons set forth above, I recommend that Newberry’s Petition be denied. Dated: January 30, 2026 /s/ James E. Grimes Jr. James E. Grimes Jr. U.S. Magistrate Judge Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 91 of 92. PageID #: <pageID>
92 OBJECTIONS Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days after the party objecting has been served with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure to file objections within the specified time may forfeit the right to appeal the District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th Cir. 2019). Case: 1:25-cv-00226-DAR Doc #: 25 Filed: 01/30/26 92 of 92. PageID #: <pageID>
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