                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0189n.06

                                            No. 15-3942


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Mar 28, 2017
KENYATTA ERKINS,                                         )                     DEBORAH S. HUNT, Clerk
                                                         )
       Petitioner-Appellant,                             )
                                                         )        ON APPEAL FROM THE
v.                                                       )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE SOUTHERN
RICK CHUVALAS, Warden                                    )        DISTRICT OF OHIO
                                                         )
       Respondent-Appellee.                              )                     OPINION
                                                         )
                                                         )



       BEFORE:         GILMAN, GRIFFIN, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Kenyatta Erkins, convicted in Ohio state court of

a string of robberies, appeals the district court’s denial of his habeas corpus petition. The district

court issued a certificate of appealability on two issues: (1) whether the prosecutor’s display of a

photograph of Erkins to victim Michael Weisbrod was impermissibly suggestive, rendering

Weisbrod’s in-court identification unreliable; and (2) whether the trial court violated due process

by amending its journalized finding of guilt. Erkins also asks the court to expand the certificate

of appealability and consider an additional claim that the trial court’s admission of Weisbrod’s

testimony by live videoconference violated the Sixth Amendment. We conclude that none of

these claims merit granting Erkins’s habeas corpus petition, and thus we AFFIRM.
No. 15-3942, Erkins v. Chuvalas


                                   I.       BACKGROUND

       Erkins and Ugbe Ojile were indicted for a series of robberies involving patrons of Indiana

casinos. The indictments followed a lengthy investigation that uncovered a common method of

operation (MO) by Erkins and Ojile that roughly fit the evidence regarding at least ten attempted

or completed robberies. See State v. Erkins, No. C-110675, 2012 Ohio App. LEXIS 4712, at

**4–5 (Ohio Ct. App. Nov. 21, 2012). Erkins would enter a casino and look for victims exiting

with large amounts of cash who appeared to be vulnerable, while Ojile waited in a car in the

parking lot. As evidenced in some instances by recorded phone conversations and casino

videotapes, Erkins would call Ojile to discuss potential targets and then follow the selected target

out of the casino. The two would follow the target home in one or two cars. When the target

exited his car, one or both assailants would approach at gunpoint and steal the victim’s money

and other valuables. In some cases, Erkins or Ojile pushed the victims, slammed them to the

ground, or beat them on the head with a gun. Erkins and Ojile were arrested after targeting and

following an undercover police officer to a gas station.

       Erkins challenges his in-court identification by Michael Weisbrod, a professional poker

player who was robbed on two separate nights.              In the first Weisbrod robbery, casino

surveillance tapes showed Erkins following Weisbrod on February 9, 2009, after he won over

$8,000. After Weisbrod drove home, a woman knocked on his door to ask a question, and then

left. Two nights later, after the lights went out at his home, Weisbrod went downstairs to check

his circuit breaker and was attacked, tied up with duct tape, and robbed in the dark by people he

perceived to be a man and a woman. At trial, Erkins’s ex-girlfriend, Amy Hoover, testified that

she, Erkins, and Ojile committed that robbery. Less than two months after the first robbery, on a

night when Weisbrod again won over $8,000, he was robbed a second time after driving home.

There was no video or audio captured relating to this second incident. This time, according to
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Weisbrod’s live video testimony at trial, he was approached at his doorstep by two African-

American men of medium build wearing hoodies and jeans. They pulled out a gun, threatened

him, ordered him to get on the ground, reached into his pockets, took his wallet and cash, and

fled in a white SUV. Weisbrod testified that his porch light was on, that the attackers’ faces

were not concealed, and that he got a good look at them. That night he had told the investigating

officer, who also testified at trial, that he would be able to identify the suspects if he saw them

again.

         Six months after the second robbery, Weisbrod saw news reports about the suspects’

arrests and recognized Erkins and Ojile (from the second robbery) and Hoover (from knocking

on his door before the first robbery). In May 2011, over two years after both robberies, and two

weeks before Weisbrod was scheduled to testify, Weisbrod met with the prosecutor in

Cincinnati. The prosecutor showed Weisbrod photos of Erkins, Ojile, and Hoover and told him

they were the people up for trial. Weisbrod responded: “Yeah, those were them.” Two weeks

later, Weisbrod testified at trial via tele-video from Canada. With the camera panning the room,

Weisbrod identified Erkins and Ojile as the two men who robbed him on his doorstep.

         Three other counts are relevant to this appeal. In Counts 22, 28, and 29, Erkins was

charged with aggravated robbery. The Government later amended those counts to charges of

robbery. On August 2, 2011, when announcing its findings after the bench trial, the trial court

announced that Erkins was guilty of “conspiracy to commit robbery” for Counts 22, 28, and 29.

The court’s written findings, by contrast, listed Erkins as being found guilty of aggravated

robbery on these counts, with no mention of conspiracy. On September 22, 2011, the court

stated that the court “amended and corrected” the findings on these charges to “complicity to




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robbery.” The court’s written findings were also amended to “complicity to robbery.” When

announcing the amended findings, the court explained:

        I’m about to even make findings that are somewhat different than what I said
        originally, and that is because I was thinking certain things in my head but wrote
        out an incorrect section of the code. And because I also reviewed and did
        reconsider evidence and did make different – I’m going to make different
        findings.

R. 10-2, Trial Transcript, PageID 1833–34.        In response to an objection, the court stated:

“[A]ctually, I’ll say for the record, I was not changing my finding, I was correcting what offense

I was attempting to name on August 18th, and we wrote out conspiracy when, in fact, the

elements that I was relying upon are those that are under the complicity statute, 2923.03.” Id. at

1837.

                                     II.       ANALYSIS

        A.     Standard of Review

        This court may grant a petition for a writ of habeas corpus to a state prisoner if the state

court decision (1) was contrary to, or involved an unreasonable application of, clearly established

federal law as determined by the United States Supreme Court, or (2) 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)(1); see also Hodges v. Colson, 727 F.3d 517, 525 (6th Cir.

2013) (citing Williams v. Taylor, 529 U.S. 362, 412–13 (2000)). We apply this standard de novo

when reviewing a district court’s decision on whether to grant a petition for a writ of habeas

corpus. Nali v. Phillips, 681 F.3d 837, 840 (6th Cir. 2012).

        B.     In-Court Identification Following Suggestive Photograph

        Identifications violate the Due Process Clause and must be excluded at trial if, under the

totality of the circumstances, the identification procedure was so unnecessarily suggestive that it

risked mistaken identification. Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir. 2005). We

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No. 15-3942, Erkins v. Chuvalas


“first assess whether the identification was unnecessarily suggestive, then assess whether the

identification was nonetheless reliable,” in which case it would be admissible despite the

suggestive procedure. Id. The Supreme Court has listed five factors to consider in determining

whether an identification was reliable under the totality of the circumstances: the witness’s

opportunity to view the criminal at the time of the crime; the witness’s degree of attention at that

time; the accuracy of the witness’s prior description of the criminal; the witness’s level of

certainty at the identification; and the length of time between the crime and the identification.

Neil v. Biggers, 409 U.S. 188, 200 (1972).

          The Ohio Court of Appeals rejected Erkins’s arguments that the prosecutor’s display of a

photograph of Erkins to Weisbrod two weeks before trial was unnecessarily suggestive and that

Weisbrod’s in-court identification was inadmissible. Erkins, 2012 Ohio App. LEXIS 4712, at

**29–31. Although the Ohio court stated the correct legal standard in general, it did not list the

specific Biggers factors, nor did it discuss the suggestiveness of the single photograph of Erkins

that was displayed. Id. In its recitation of the facts supporting reliability, the court effectively

addressed only the first Biggers factor (the witness’s opportunity to view the criminal during the

crime):

          The record shows that when Weisbrod was robbed the second time, it occurred in
          the well-lit parking lot of his residence. He was able to get a good look at the
          faces of his attackers. He told the investigating police officer that if he saw the
          attackers again, he would be able to identify them. Several months later,
          Weisbrod saw news reports about the arrest of Hoover, Erkins and Ojile, which
          displayed pictures of them. Weisbrod recognized them and was able to identify
          them to the police.

Id. at **30.

          The district court determined that the Ohio court’s finding of reliability was reasonable.

It dismissed Erkins’s argument that the Ohio court failed to apply the Biggers factors, finding



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No. 15-3942, Erkins v. Chuvalas


that the Biggers factors went to the weight of the identification evidence, not to its admissibility.

As Erkins correctly argues on appeal, this was error. The Biggers factors are meant to determine

reliability, and “reliability is the linchpin in determining the admissibility of identification

testimony . . . .” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The Biggers factors thus

determine admissibility, and both the Ohio courts and the district court should have analyzed

them. If beginning the identification procedure by showing the single photograph of Erkins

before trial was unnecessarily suggestive, and if application of the Biggers factors did not

establish that the identification was nonetheless reliable, then the identification should have been

excluded.

       The prosecutor’s display of Erkins’s photograph to Weisbrod was unnecessarily

suggestive. Only two weeks before trial, but two years after the crime, the prosecutor showed

Weisbrod photos of Erkins and his co-defendants—without placing them in an array of other

photos—and told Weisbrod that they were the people on trial. The Government has presented no

justification or rationale for why this display might have been necessary. The Supreme Court

has specifically recognized that the display of a single photograph to a witness creates a danger

of misidentification.    Simmons v. United States, 390 U.S. 377, 383 (1968).               Although

identifications based on single-photograph displays are not automatically excluded, they “may be

viewed in general with suspicion,” and merit moving to the second step: analysis of the Biggers

factors. Manson, 432 U.S. at 116.

       Analysis of the Biggers factors leads to mixed results. First, Weisbrod’s opportunity to

view the perpetrators weighs in favor of reliability.       Although the robbery was brief and

happened at night, Weisbrod testified that the area was well-lit and he got a good look at the

robbers’ faces, which were not concealed by their hoodies.              Weisbrod told the police



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No. 15-3942, Erkins v. Chuvalas


immediately after the robbery that he would be able to identify the robbers if he saw them again.

Besides the fact that it was nighttime, Erkins has presented no evidence to counter Weisbrod’s

testimony that the robbers’ faces were visible during the crime and identifiable.

       The second factor is the witness’s degree of attention. Our cases acknowledge that

“[t]here is a great potential for misidentification when a witness identifies a stranger based solely

upon a single brief observation, and this risk is increased when the observation was made at a

time of stress or excitement.” Wilson v. Mitchell, 250 F.3d 388, 398 (6th Cir. 2001) (quoting

United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976)). Weisbrod testified that the

robbery was a “very, very traumatic experience.” This factor weighs against reliability.

       The third factor, the accuracy of the initial description, also weighs against reliability.

Weisbrod told the police after the robbery that the robbers were “two male blacks, both in their

20s, with black hoodies on.” This generic description only partially matches Erkins, a black man

who was thirty-five years old at the time. In cases in which the Supreme Court has found that

the accuracy of a prior description contributed to an identification’s reliability, the prior

description has included further details about the criminal’s body or face. See Biggers, 409 U.S.

at 194, 200–01; Manson, 432 U.S. at 115. The fourth factor, the certainty of Weisbrod’s in-court

identification, however, weighs in favor of its reliability. Weisbrod had always stated that he

would be able to identify the robbers and at trial specified that he had no doubts that Erkins was

one of his assailants.    Finally, the two years between the crime and Weisbrod’s in-court

identification weighs heavily against its reliability. In Biggers, the Supreme Court noted that a

lapse of seven months “would be a seriously negative factor in most cases.” 409 U.S. at 201.

       On balance, we think that the factors raise grave doubts about reliability given the

lengthy time gap since the crime, the brief and stressed opportunity to view the perpetrators, the



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generic description, and the fact that Weisbrod was likely influenced by having viewed Erkins in

news reports before identifying him in court. As a federal court considering a state court’s ruling

for purposes of a habeas petition, however, our review is to determine whether the Ohio courts’

conclusion on reliability was objectively unreasonable. The standard is a difficult one to satisfy:

“A state adjudication is not ‘unreasonable’ ‘simply because [a federal habeas court] concludes in

its independent judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly.” Howard, 405 F.3d at 467 (quoting Williams, 529 U.S. at 411)

(alteration in Howard).

       The circumstances here are not so one-sided that it was objectively unreasonable for the

Ohio courts to conclude that Weisbrod’s identification was reliable. The Ohio courts’ conclusion

that Weisbrod’s testimony was reliable is buttressed by the fact that he identified Amy Hoover as

the person who knocked on his door, and Hoover confessed to doing so, indicating that other

parts of Weisbrod’s recollection of the robberies were accurate.        Under the totality of the

circumstances, we cannot say that the district court improperly dismissed this ground of Erkins’s

habeas petition.

       C.      Trial Court’s Amendment of Its Journalized Finding

       Erkins argues that the trial court’s initial announcement and journal entry finding Erkins

guilty of crimes with which he was not charged violated his due process rights, and that the

court’s amendment of those findings subjected Erkins to double jeopardy. The Ohio Court of

Appeals concluded that the trial court did not change its verdict, but merely corrected a clerical

error, which was permissible under state law. Erkins, 2012 Ohio App. LEXIS 4712, at **28.

This conclusion was reasonable.      The trial court’s initial announcement and journal entry

appeared to be inadvertent and ultimately harmless misstatements of the crimes of which Erkins

was found guilty. The amendments found Erkins guilty of the crimes on which the prosecution
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had presented evidence. The court specifically stated that “I was not changing my finding, I was

correcting what offense I was attempting to name on August 18th, and we wrote out conspiracy

when, in fact, the elements that I was relying upon are those that are under the complicity

statute.” R. 10-2, Trial Transcript, PageID 1837. That statement makes clear that the court

intended to find Erkins guilty of complicity to robbery during its initial announcement, and later

corrected the journalized findings to match its original intention. Therefore, it was proper for the

district court to dismiss this ground of Erkins’s habeas petition.

       D.      Admission of Video Testimony

       Erkins asks us to expand the certificate of appealability to address a third argument: that

the trial court’s admission of Weisbrod’s testimony by live videoconference violated Erkins’s

Sixth Amendment right to face-to-face confrontation. We exercise our discretion to do so.

       The Supreme Court has held that “a defendant’s right to confront accusatory witnesses

may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such

confrontation is necessary to further an important public policy and only where the reliability of

the testimony is otherwise assured” and that the trial court must make a “case-specific finding of

necessity” after “hear[ing] evidence.” Maryland v. Craig, 497 U.S. 836, 850, 855, 858 (1990).

There appears to be no record of the trial court considering any evidence or making a finding of

necessity that would have permitted Weisbrod to testify by videoconference.

       Erkins did not object to the testimony by video at trial, and he did not raise this argument

on direct appeal, in his pro se petition for post-conviction relief in state court, or in his pro se

habeas petition in federal court. Because Erkins defaulted this federal claim in state court, we

may consider this issue on habeas review only if Erkins can “demonstrate cause for the default

and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure



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No. 15-3942, Erkins v. Chuvalas


to consider the claims will result in a fundamental miscarriage of justice.”          Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

       Erkins argues that his default was caused by his trial and appellate counsels’ failure to

object to the admission of Weisbrod’s testimony, which rendered both attorneys constitutionally

deficient. Constitutionally ineffective counsel may establish cause for a procedural default. See

id. at 752–54. The failure to object would have been constitutionally ineffective if it were

deficient and prejudicial, both of which are the defendant’s burden to show. Strickland v.

Washington, 466 U.S. 668, 687 (1984). A counsel’s actions are deficient if they “were not

supported by a reasonable strategy,” Massaro v. United States, 538 U.S. 500, 505 (2003), and

they are prejudicial if “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694.

       Erkins argues that there was no reasonable strategic explanation for the failure to object

to Weisbrod’s testimony. The Supreme Court has made clear that while physical, face-to-face

confrontation at trial is not indispensable, the Sixth Amendment permits an alternative “only

where denial of such confrontation is necessary to further an important public policy and only

where the reliability of the testimony is otherwise assured.” Craig, 497 U.S. at 850. Given the

lack of evidence that the trial court made the required case-specific finding of necessity, and the

Government’s lack of response to this argument, we assume without deciding that there was no

reasonable strategic explanation for counsel’s failure to object to Weisbrod’s remote testimony

and thus that counsel was deficient.

       To demonstrate cause for his procedural default, Erkins must also show prejudice under

Strickland, meaning that but for his counsel’s failure to object to Weisbrod’s videoconference

testimony, he probably would not have been convicted of the second Weisbrod robbery. See 466



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No. 15-3942, Erkins v. Chuvalas


U.S. at 694.    Weisbrod’s testimony described the robbery and identified Erkins as the

perpetrator. Besides Weisbrod’s identification, there was no other direct evidence of Erkins’s

involvement in the second robbery of Weisbrod. Unlike many of the other robberies for which

Erkins was convicted, there was no video, telephone, or police-observation evidence linking

Erkins with this victim on the night of this crime. The only other testimony regarding this

robbery was by the police officer who responded to Weisbrod’s home that night, but that officer

did not directly observe the crime or identify Erkins. Given such limited evidence, if this case

involved only this one robbery, Erkins would be correct that there was insufficient evidence to

find him guilty without Weisbrod’s testimony.

       The record below, however, contains evidence supporting Erkins’s other convictions,

particularly his prior robbery of Weisbrod (which Erkins does not contest on federal review).

That circumstantial evidence could have led a factfinder to find Erkins guilty of this charge. The

second robbery of Weisbrod matched the MO established by the evidence of Erkins’s other

convictions: after winning a large sum of cash at the casino that Erkins frequented, Weisbrod

was robbed by two black males with a gun upon his return home. Furthermore, Erkins was

convicted of robbing Weisbrod in a comparable manner less than two months earlier. The

evidence regarding the first robbery showed that Erkins knew where Weisbrod lived, knew he

had won thousands of dollars in cash at this casino before, and knew that he had successfully

robbed Weisbrod before. The evidence for the first robbery did not itself depend on Weisbrod’s

testimony—a video recording showed Erkins following Weisbrod at the casino and Erkins’s

co-perpetrator, Amy Hoover, testified that Erkins committed that robbery. Erkins’s MO and his

prior robbery of Weisbrod provided significant circumstantial evidence that could have permitted

a rational factfinder to find Erkins guilty of the second robbery even without Weisbrod’s



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No. 15-3942, Erkins v. Chuvalas


testimony. Erkins has not carried his burden to show a reasonable probability that, but for his

counsel’s failure to object to the admission of Weisbrod’s video testimony, he probably would

not have been convicted on this count. He has not shown prejudice.

           Alternatively, a federal habeas court may consider a defaulted claim if failure to do so

would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Such a

miscarriage occurs only in the “extraordinary case,” in which the petitioner can show that “‘it is

more likely than not that no reasonable juror would have convicted [defendant]’ absent the

claimed error or in light of new evidence.” Gall v. Parker, 231 F.3d 265, 319–20 (6th Cir. 2000)

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). On the record in this case, Erkins has failed

to show that his conviction of the second robbery of Weisbrod was a fundamental miscarriage of

justice.

           Erkins defaulted his Sixth Amendment claim. Because he failed to show prejudice

resulting from his counsel’s deficient performance, we may not consider the merits of this claim.

                                    III.       CONCLUSION

           For the foregoing reasons, we affirm the district court’s denial of Erkins’s habeas corpus

petition.1




1
 We note that the district court’s conclusion that the Ohio robbery provision under which Erkins
was convicted does not require proof of a weapon appears to conflict with Ohio courts’ reading
of that provision. See State v. Wharf, 715 N.E.2d 172, 174 (Ohio 1999) (analyzing the “deadly
weapon element” of Ohio Rev. Code § 2911.02(A)(1)). However, Erkins did not raise this on
appeal, and we decline to expand the certificate of appealability sua sponte for that issue.
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