Brown v. Konteh ( 2009 )


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    Pursuant to Sixth Circuit Rule 206
    File Name: 09a0196p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    GERALD L. BROWN,
    -
    Petitioner-Appellant,
    -
    -
    Nos. 06-4037/4043
    v.
    ,
    >
    -
    Respondent-Appellee. -
    KHELLEH KONTEH, Warden,
    -
    N
    Appeal from the United States District Court
    for the Southern District of Ohio at Columbus.
    No. 05-00540—John D. Holschuh, District Judge.
    Argued: April 25, 2008
    Decided and Filed: June 2, 2009
    Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Andrew P. Avellano, Columbus, Ohio, for Appellant. M. Scott Criss, OFFICE
    OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF:
    Andrew P. Avellano, Columbus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE
    OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
    _________________
    OPINION
    _________________
    MARTHA CRAIG DAUGHTREY, Circuit Judge. A violent rampage through the
    Beacon Hill Apartment complex in Columbus, Ohio, on August 14, 2001, resulted in the
    burglary of two apartments, three aggravated robberies, two vicious beatings, and a murder.
    The petitioner, Gerald L. Brown, Jr., was eventually convicted for the numerous crimes.
    Although the State of Ohio sought to execute Brown for his participation in the offenses, a
    three-judge panel that heard the evidence against him sentenced him instead to life in prison
    without consideration for parole for 69 years. The petitioner then unsuccessfully attempted
    1
    Nos. 06-4037/4043          Brown v. Konteh                                              Page 2
    to overturn his convictions both through the Ohio state court appeals process and through
    habeas corpus proceedings in federal district court. Brown now appeals from the district
    court’s denial of his habeas petition, alleging only that the Ohio state courts unreasonably
    concluded that the evidence adduced at his trial was legally sufficient to support the various
    convictions. For the reasons set forth below, we affirm the district court’s ruling in part,
    reverse in part, and remand the case for entry of such orders as are appropriate and necessary
    to comply with this opinion.
    I. FACTUAL BACKGROUND
    Because Brown’s habeas petition is governed by the provisions of the Antiterrorism
    and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
    (1996), factual determinations made by the state courts are presumed to be correct. See 28
    U.S.C. § 2254(e)(1). Moreover, only by clear and convincing evidence can a petitioner
    overcome that statutory presumption. See 
    id. To demonstrate
    the enormity of Brown’s task
    in this appeal, we quote at length from the recitation of the pertinent trial evidence by the
    Ohio Court of Appeals and thus highlight just how extensive and thorough that recapitulation
    was. In its opinion, the state appellate court summarized the evidence at the petitioner’s trial
    as follows:
    According to the state’s evidence, on or about August 14, 2001,
    LaToya Dixon, who was 16 years old at the time, paged Dennis Michael
    Williams, aka “Mikey,” and invited him to her apartment. At that time,
    Dixon lived in apartment 2F at 4611 Refugee Road, Columbus, Ohio, in an
    apartment complex that was then called the Beacon Hill Apartments.
    Within about an hour, Williams, who was accompanied by male
    friends whom Williams later introduced to Dixon as “cousins” and with
    whom Dixon was unfamiliar, arrived at Dixon’s apartment complex in two
    cars. Dixon met Williams and his companions in the parking lot of the
    apartment complex, and Dixon escorted Williams and his companions to her
    apartment. At trial, Dixon could not recall Williams’[s] companions’ names.
    One of Williams’[s] companions asked Dixon if he could use her
    telephone. Dixon agreed. However, when the telephone apparently did not
    work, Williams’[s] companion attempted to break the telephone. Although
    Williams attempted to calm Dixon, Dixon became concerned and asked
    Williams’[s] companion why he was attempting to break her telephone.
    Dixon, who was now concerned about her safety, then went across
    the hall to the apartment of a neighbor, Emmitt Grant, and asked for a
    Nos. 06-4037/4043      Brown v. Konteh                                               Page 3
    “Black & Mild” cigar. According to Dixon, Grant was aware that Dixon did
    not smoke and by asking for the cigar Dixon had hoped “to let [Emmitt
    Grant] know that I felt like something was about to happen in my house.”
    While Dixon was talking with Grant, some of the individuals that Dixon had
    allowed into her apartment observed Dixon through the peephole.
    After talking with Grant, Dixon returned to her apartment. Upon
    returning to her apartment, Dixon and Williams went into the bathroom to
    talk. The men that accompanied Williams remained in Dixon’s living room.
    At some point, Williams’[s] companions left Dixon’s apartment.
    Dixon and Williams then retired to Dixon’s bedroom to have sex.
    However, Dixon ultimately decided against having sex with Williams and
    left the apartment. As she exited the apartment, Dixon passed Williams’[s]
    companions, who were entering Dixon’s apartment.
    After exiting her apartment, Dixon went by the apartment complex’s
    pool and came upon Jerramie Hill and John Hill, who inquired of Dixon
    what was happening. Dixon told the Hill brothers that she was waiting for
    Williams and his companions to leave her apartment and “[t]hey were acting
    crazy.” Dixon also told the Hill brothers that they should not intervene.
    Dixon then began walking with the Hill brothers. At some point,
    Williams and his companions jumped out from an entryway, surrounded the
    Hill brothers, and attacked them.
    Dixon then ran to her apartment to change her clothes, “[b]ecause I
    didn’t have-really have no clothes on. I had like a dress on. I didn’t have
    no shoes or nothing on * * *.” She later peered through a broken window
    into the Hill brothers’ apartment. Dixon observed a man with many compact
    discs in his hand. She recognized this man as one of Williams’[s]
    companions. The apartment was in disarray and there was blood on the
    walls. Dixon also observed someone being beaten in the bathroom. She
    also heard screams and stomping sounds from the apartment. Dixon also
    recognized Williams’[s] voice coming from the Hill brothers’ apartment.
    She did not hear any gunshots, nor did she observe anyone being hit with a
    commercial blower that purportedly was in the Hill brothers’ apartment.
    Fearing for her own safety, Dixon fled to a friend’s house. The next
    day she contacted police.
    According to Emmitt Grant, who lived in apartment 2E across from
    Dixon’s apartment, after a female friend with whom Grant had spent the
    evening left his apartment between 1 and 1:30 a.m. on August 14, 2001,
    Grant remained in his apartment and played video games. Because the
    weather was pleasant, he left the door to his apartment open.
    According to Grant, at approximately 2 a.m. on August 14, 2001, he
    observed Dixon leave her apartment. Approximately five minutes later,
    Dixon returned to her apartment and was accompanied by some black males.
    Nos. 06-4037/4043       Brown v. Konteh                                                 Page 4
    Approximately five minutes later, Grant observed two men exit Dixon’s
    apartment and go down the stairs. After a couple of minutes, these men
    returned to Dixon’s apartment. Grant also heard one man, upon exiting
    Dixon’s apartment scream, “Fuck, that. Who is he? Who is he?”
    At some point, Grant closed the door to his apartment. As he
    retreated to his seat, there was a knock at his door. Dixon was at the door
    and asked Grant for a cigar. She did not appear to be upset. Dixon returned
    to her apartment and, as she opened the door to her apartment, Grant
    observed several men in Dixon’s apartment.
    As Grant turned to return to his apartment, one of the men greeted
    Grant. Grant returned the greeting, entered his apartment, and closed the
    door. Later, however, because Grant felt that he should not have to close his
    door, he reopened the door to his apartment and left it halfway open.
    A few minutes after Grant reopened his door, a man stood in the
    doorway to his apartment with his back toward Grant. The man looked over
    his shoulder and inquired as to what Grant was doing. Grant replied that he
    was playing a Dreamcast game.
    As the man stood at the doorway, another man entered Grant’s
    apartment without invitation from Grant and stood in front of a table by the
    couch. Next, the man who had been standing in the doorway entered
    Grant’s apartment also without invitation and swung at Grant. A fight
    ensued. Two other men entered Grant’s apartment and attacked Grant.
    During the fight, Grant saw a person run toward the back of his apartment.
    This same person slammed Grant’s entertainment center to the floor.
    During the fight, Grant observed a gun fall from the hip of the
    person that had first swung at him. Grant then heard others in the
    background scream, “Get your gun, get your gun. * * * He’s about to get
    your gun.” Grant’s hand was then kicked away from the gun that had hit the
    floor. A cable cord from Grant’s videocassette recorder (“VCR”) was
    wrapped around Grant’s neck, and later an attacker hit Grant’s head with a
    little table. After being struck three times in the head with the table, Grant
    fell to the floor. The man that had wrapped the cord around Grant’s neck
    then said, “Fuck it. Let’s drag his ass to the back.” In court, Grant could not
    identify defendant as one of the men who had been in his apartment.
    At some point, Grant escaped from his attackers. Grant ran across
    the apartment complex to an apartment that was illuminated. An elderly
    resident came to the door. Grant asked the resident to call Grant’s family or
    friends. Instead, the resident called 911.
    Officers Patrick Seaman and Aaron Dennis of the Columbus
    Division of Police responded to the location where the 911 call was placed
    by the elderly resident. Earlier police had also received another call from
    the resident in the apartment below Grant’s apartment concerning a
    Nos. 06-4037/4043       Brown v. Konteh                                               Page 5
    commotion or fight in Grant’s apartment. After viewing Grant, Officers
    Seaman and Dennis summoned paramedics to attend to Grant’s injuries.
    Officers Seaman and Dennis then went to Grant’s apartment to
    investigate and secure the crime scene. When Officers Seaman and Dennis
    arrived at Grant’s apartment, Officer Seaman observed that the apartment
    was torn apart and it appeared that a fight had occurred in the apartment. In
    the bedroom, Officers Seaman and Dennis found what appeared to be crack
    cocaine on a plate on a dresser. Officers Seaman and Dennis found no
    suspects in Grant’s apartment.
    While Officer Dennis remained at Grant’s apartment, Officer
    Seaman returned to the location where the paramedic was treating Grant.
    Officer Seaman, along with a paramedic, then escorted Grant back to his
    apartment. During the walk to Grant’s apartment, Officer Seaman saw a
    PlayStation game on the grass in the courtyard near another apartment.
    Because it was unusual to see an unattended PlayStation game in the middle
    of the grass, Officer Seaman remained to investigate while the paramedic
    and Grant continued toward Grant’s apartment.
    Near the location where the PlayStation game was found, Officer
    Seaman noticed a ground floor apartment with an open window. Because
    it was unusual to have a wide-open window in a ground floor apartment in
    this particular apartment complex that had a high crime rate, Officer Seaman
    went to the apartment to investigate. Looking through the window, Officer
    Seaman observed debris in the apartment. Next, Officer Seaman noticed that
    the door to the apartment was wide open. Officer Seaman radioed his
    location. Shortly afterward, Officer Seaman noticed blood on the door and
    a blood trail that appeared to start from the apartment and continue through
    the stairwell.
    After announcing his presence, Officer Seaman entered the
    apartment. The apartment was torn apart and there was blood on the walls.
    As Officer Seaman passed the bathroom, he saw blood and noticed the
    bathroom was torn apart. As Officer Seaman entered the bedroom, he saw
    one white male, Jerramie Hill, curled in a fetal position on the bed and
    covered in blood. Another white male, John Hill, who was also covered in
    blood, was lying facedown on the floor. Officer Seaman radioed his
    findings. Officer Dennis, who had been in Grant’s apartment, then left
    Grant’s apartment to assist Officer Seaman.
    Officer Seaman observed shell casings and one spent bullet. Next
    to John Hill, Officer Seaman noticed a pool of blood on the floor and a
    bullet wound on the body with burn marks around it. According to Officer
    Seaman, John Hill was dead.
    Officer Seaman initially believed Jerramie Hill, who appeared badly
    beaten, was also dead. However, after determining Jerramie Hill was alive,
    Officer Seaman summoned a paramedic.
    Nos. 06-4037/4043       Brown v. Konteh                                                 Page 6
    According to Jerramie Hill, a witness for the state, he and his
    brother, John Hill, were walking in the apartment complex when they saw
    Dixon standing underneath some steps. Dixon appeared upset and the Hill
    brothers asked her what she was doing. Dixon responded that there were
    some individuals in her apartment. While Jerramie and his brother were
    walking with Dixon toward their apartment, four black males confronted
    Jerramie Hill and his brother. The men stopped the Hill brothers, asked the
    brothers to put their arms in the air, and patted them down. Then one man
    punched John Hill in the mouth and cut his lip. John Hill went toward some
    steps and spit blood out of his mouth. Then the Hill brothers went to their
    apartment.
    At the apartment, John Hill went to the bathroom to clean his lip. As
    Jerramie Hill was trying to shut the screen to a window that had been broken
    the night before, one of the individuals that had stopped the Hill brothers
    came in through the broken window, opened the front door to the apartment,
    and let in the other two members of the group that had earlier confronted the
    Hill brothers.
    After members of the group entered the apartment, the intruders
    queried Jerramie Hill about items in the apartment. Jerramie Hill attempted
    to represent that the items did not belong to him and he told the intruders
    they could take the items, such as a television and a Sega Dreamcast game
    system. The intruders questioned Jerramie Hill about who was in the
    apartment’s back room. Jerramie Hill informed the intruders that his brother
    was in the back room.
    The intruders ordered Jerramie Hill to help them carry items out of
    the apartment. At one point, Jerramie Hill attempted to flee the apartment.
    One of the intruders grabbed Jerramie Hill, threw him to the floor
    and began to stomp on his head. Two other intruders went to the back of the
    apartment. According to Jerramie Hill, during the attack he drifted in and
    out of consciousness. However, Jerramie Hill recalled being hit over the
    head with a carpet blower that had been placed in his apartment to dry the
    carpet because the apartment previously had been flooded. Hill did not hear
    any gunshots.
    Jerramie Hill regained consciousness while paramedics were
    attending to his injuries. According to Hill, he was hospitalized for more
    than a week following the attack, and that due to the attack his “balance is
    not the same.” Further, he stated, “I’ve lost three of my jobs ‘cause my
    movement wasn’t fast enough.” Hill could not identify any of the intruders.
    According to the state, in addition to the attacks of the Hill brothers
    and Grant, items were also stolen from the Hill brothers’ apartment and from
    Grant’s apartment. According to Jerramie Hill, a television, compact discs,
    a dragon statue, and a Sega Dreamcast system were missing from his
    apartment. According to Grant, clothes, shoes, boots, a PlayStation 1 video
    Nos. 06-4037/4043       Brown v. Konteh                                               Page 7
    game machine, Sega Dreamcast video game machine, a video game, jewelry,
    and a cell phone were missing from his apartment.
    At trial, portions of a videotaped interview of defendant that was
    conducted on November 6, 2001, by Detective Carl Rankin of the Columbus
    Police Department were played and transcribed into the record. Detective
    Rankin also testified at trial. According to Detective Rankin, following
    Grant’s assault, he had linear bruising from ear to ear, which was consistent
    with Grant’s account of being choked with the VCR cable cord.
    According to Detective Rankin, prior to interrogating defendant,
    defendant voluntarily waived his constitutional rights under Miranda.
    During the videotaped interview, defendant provided police with his factual
    account of the events of August 14, 2001. At the interview, defendant
    admitted to involvement with the attacks of Grant and the Hill brothers.
    However, defendant denied killing John Hill.
    According to Dr. Dorothy E. Dean, forensic pathologist and deputy
    coroner, based upon her evaluation, John Hill sustained blunt-force injuries
    and eight entrance gunshot wounds, although two of these entrance gunshot
    wounds may have been reentry wounds, thereby suggesting he had been shot
    six times in total. According to Dr. Dean, John Hill died from bullet wounds
    to his torso that injured his heart and arteries. Based upon the autopsy, Dr.
    Dean opined that John Hill had not been beaten severely prior to his death.
    In contrast to the state’s evidence, defendant presented a differing
    version of the events of August 14, 2001.
    According to defendant, on the evening of August 14, 2001, LaToya
    Dixon paged Mikey Williams, a “cousin” of defendant, and invited Williams
    to Dixon’s apartment. At the time Williams received Dixon's page, Williams
    was with defendant, James Ingram, aka “Rock,” and Cortez Smith. Prior to
    this time, defendant was not acquainted with Cortez Smith.
    Defendant, who had been drinking, James Ingram, and Cortez Smith
    accompanied Williams to Dixon’s apartment. Defendant and Ingram rode
    with Williams while Smith drove another vehicle and followed the others to
    Dixon’s apartment.
    Although Dixon did not know Williams’[s] companions, she allowed
    Williams and his companions to enter her apartment. According to
    defendant, there may have been an understanding between Williams and his
    companions that they would have sex with Dixon.
    At one point, Dixon left her apartment and later returned. After the
    planned sex did not materialize, defendant, Ingram, and Smith left Dixon’s
    apartment. Williams remained in the apartment.
    While defendant and the others were outside Dixon’s apartment,
    defendant and Emmitt Grant exchanged stares and words. Defendant
    Nos. 06-4037/4043       Brown v. Konteh                                                Page 8
    informed Williams about the encounter with Grant. Defendant, Williams,
    and Ingram then entered Grant’s apartment and fought with Grant. Williams
    was the first person to punch Grant. During the fight, defendant held Grant
    and punched him in the ribs while Ingram punched Grant in the face.
    During the fight, defendant did not know the whereabouts of Smith. At
    some point, Grant escaped and fled. Williams pursued Grant. Defendant
    and Ingram followed.
    Defendant, Ingram, and Smith then came upon the Hill brothers. A
    fight ensued and continued in the Hill brothers’ apartment. Defendant
    admits that he beat Jerramie Hill while he was in the Hill brothers’ apartment
    and that he struck John Hill. However, defendant denies that he struck
    Jerramie Hill with a commercial blower or that he ever threatened the use of
    a handgun. Defendant also claimed he was not in the bedroom when John
    Hill was shot. According to defendant, he did not shoot John Hill, nor did
    he hear any gunshots.
    After fighting with the Hill brothers, defendant, along with Williams,
    Ingram, and Smith, headed toward Williams’[s] car. Smith, however,
    decided to return to the apartments to steal a video game. Because Smith
    was gone awhile, defendant searched for him. While searching for Smith,
    defendant reentered the Hill brothers’ apartment and observed that neither
    Jerramie Hill nor John Hill was moving. Smith was not in the Hill brothers’
    apartment.
    Defendant then observed Smith coming downstairs from the area of
    Grant’s apartment. Smith was carrying a video game. Defendant also
    observed a shiny object in Smith’s hand, which Smith put in his pocket.
    Defendant believed the shiny object was a gun.
    Defendant, Williams, Ingram, and Smith then left the apartment
    complex. Defendant and Ingram rode with Williams, while Smith drove
    away separately.
    According to Tom Stanley, a fire department paramedic who
    attended to Emmitt Grant on August 14, 2001, the courtyard where Grant
    was examined was dark and Stanley could not recall observing any bruising
    along Grant’s neck. Cf. testimony of Detective Rankin who testified Grant
    had bruising on his neck. Additionally, according to Stanley, Grant refused
    to be transported to the hospital.
    Detective Edward Cox of the Columbus Police Department testified
    regarding the arrest of Cortez Smith related to a series of robberies that
    occurred in November 2001. Detective Cox also testified about the items
    that were recovered from Smith at the time of his arrest in November 2001.
    These items included two chrome .32 caliber semiautomatic pistols and a
    pair of red work boots. However, according to earlier cross-examination
    testimony of Detective Rankin in the state’s case in chief, although a .32
    caliber weapon was used in the killing of John Hill, the weapons recovered
    Nos. 06-4037/4043       Brown v. Konteh                                                 Page 9
    from Smith in November 2001 were not the weapons used in the killing of
    John Hill.
    Officer Aaron Dennis of the Columbus Police Department testified
    that he did not observe any linear bruising of Emmitt Grant’s neck.
    According to Officer Dennis, after he and Officer Seaman investigated
    Grant’s apartment, both he and Officer Seaman returned to Grant, who was
    receiving medical treatment by paramedics. He and Officer Seaman
    intended to escort Grant to his apartment and question him about the events
    that occurred in his apartment and about the suspected crack cocaine that
    Officers Seaman and Dennis found in his apartment.
    According to Officer Dennis, he and Grant headed toward Grant’s
    apartment while Officer Seaman stayed behind. While Officer Dennis was
    with Grant in Grant’s apartment, Officer Dennis heard Officer Seaman’s
    radio transmissions. After hearing Officer Seaman’s second radio
    transmission, Officer Dennis left to assist Officer Seaman.
    Approximately 20 minutes later, Officer Dennis returned to Grant’s
    apartment. After returning to Grant’s apartment, Officer Dennis noticed that
    the suspected crack cocaine that was in Grant’s bedroom was no longer
    there.
    Cortez Smith, who at the time of his testimony was incarcerated
    related to charges arising from the circumstances of this case as well as
    another case and who had entered into a plea agreement with the state,
    testified that he stole a Sega Dreamcast video system, a video game, and
    clothes, including red boots, from Emmitt Grant's apartment. On direct
    examination, Smith admitted to a history of substance abuse, which included
    the use of alcohol, “weed,” ecstasy, and cocaine.
    According to Smith, on the morning of August 13, 2001, he had used
    alcohol, marijuana, and ecstasy. Later that same day, Smith went to an
    apartment where he met Williams, Ingram, defendant, and others.
    According to Smith, at that apartment, alcohol was consumed and there also
    might have been cocaine use.
    From this apartment, Smith drove in a separate car to the Beacon
    Hill apartment complex, while Williams, defendant, and Ingram rode to the
    Beacon Hill apartment complex in Williams’[s] car. According to Smith, the
    first time he met LaToya Dixon was on the night of August 14, 2001, in her
    apartment. Smith confirmed that a fight had occurred in Emmitt Grant’s
    apartment, but Smith did not recall hearing anyone state, “Let’s open him
    [Grant] up” or words that could be vaguely construed as this.
    According to Smith, he was in Grant’s apartment approximately
    three to five minutes. After taking the Sega Dreamcast video system and
    other items, Smith testified he went to the car that he was driving and put the
    stolen items into the backseat. Then, according to Smith, he returned to both
    Grant’s apartment and Dixon’s apartment and found no one there. Smith
    Nos. 06-4037/4043       Brown v. Konteh                                            Page 10
    then left. According to Smith, he was at the Beacon Hill apartment complex
    a total of approximately 15 to 20 minutes. According to Smith, when he left
    the apartment complex, Williams’[s] car was still in the parking lot.
    On cross-examination, Smith testified that he observed defendant
    and the others fighting Emmitt Grant in the living room of Grant’s
    apartment. According to Smith, he entered Grant’s apartment after the fight
    had begun. After entering Grant’s apartment, Smith went to Grant’s
    bedroom to investigate whether there was anything of value that he could
    steal. Smith admitted to stealing items from Grant’s closet, but he denied
    rummaging through Grant’s dresser drawers. After stealing items from
    Grant’s bedroom, Smith stole a Sega Dreamcast video system on his exit
    from Grant’s apartment.
    On redirect examination, Smith testified that he recalled seeing the
    Hill brothers; however, Smith did not recall exactly when he saw them.
    According to Smith, during the fight in Grant’s apartment, a gun
    dropped to the floor. Smith did not pick up the gun, but he did observe
    someone else pick up the gun. Smith described the gun that fell to the floor
    as “[l]ike them guns that Germans have in them old German movies, like-
    like dark-dark black, like a black gun. I think it was a wood handle with like
    funny kind of-kind of nozzle on it or barrel, whatever you call it.”
    According to Smith, he thought he had seen the gun earlier in the evening.
    Smith denied handling the gun.
    By an 11-count indictment filed November 15, 2001, defendant was
    charged with two counts of aggravated burglary, each count with two
    specifications; three counts of aggravated robbery, each count with two
    specifications; two counts of attempted murder, each count with two
    specifications; two counts of felonious assault, each count with two
    specifications; and two counts of aggravated murder, each count with five
    specifications.
    On September 6, 2002, defendant waived his right to a jury trial and
    elected to be tried by the court. A panel of three judges was assigned to hear
    the case.
    On September 17, 2002, the lead prosecutor filed an affidavit that
    requested the disqualification of one judge who was assigned to the three-
    judge panel that was scheduled to hear the case. On October 9, 2002, the
    Chief Justice of the Supreme Court of Ohio denied the requested
    disqualification of the assigned panel member.
    A trial was held in late November 2002. The three-judge panel
    found defendant guilty of all charges in the indictment. However, with
    respect to count ten, aggravated murder as it related to aggravated burglary,
    the panel found defendant was not the principal offender in the commission
    of the aggravated murder and the aggravated murder was not committed
    with prior calculation or design. Furthermore, with respect to count eleven,
    Nos. 06-4037/4043         Brown v. Konteh                                            Page 11
    aggravated murder as it related to aggravated robbery, the panel found
    defendant was not the principal offender in the commission of the
    aggravated murder and the aggravated murder was not committed with prior
    calculation and design.
    Finding that several mitigating factors existed according to a
    preponderance of the evidence, the trial court excluded the death penalty as
    a possible sentence. Instead, the trial court sentenced defendant to life with
    no consideration for parole for 69 years.
    State v. Brown, No. 03AP-130, 
    2004 WL 1277498
    , at *2-9 (Ohio App. 10 Dist. June 10,
    2004) (footnotes, citations, and internal quotation marks omitted).
    After recounting that evidence, two judges of the Ohio Court of Appeals engaged in
    an equally thorough and meticulous exposition of how an application of relevant Ohio
    criminal law precepts to those facts supported Brown’s felony-murder conviction, as well
    as his convictions for the additional charged offenses. The majority first noted that Brown
    failed to challenge four of his convictions: the aggravated burglary of Emmitt Grant (Count
    1); the felonious assault of Emmitt Grant (Count 4); the aggravated burglary of the apartment
    of the Hill brothers (Count 5); and the felonious assault of Jerramie Hill (Count 9). The
    legitimacy of those convictions thus was not properly before the appellate court.
    In addressing the petitioner’s challenge to his three aggravated robbery convictions,
    the state-court majority first conceded that “there is no evidence that defendant himself
    possessed or had under his control a gun during the aggravated robberies of August 14,
    2001, and therefore the evidence does not support a finding that defendant was a principal
    offender with respect to the charges of aggravated robbery” of Emmitt Grant, Jerramie Hill,
    and John Hill. 
    Id. at *11.
    Nevertheless, the court noted that Ohio law permits an aggravated
    robbery conviction, even if the defendant did not personally possess a weapon, if that
    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.” State v. Johnson, 
    754 N.E.2d 796
    , 801 (Ohio 2001). Finding that Brown
    did so assist in the robberies, the majority affirmed those convictions.
    Similarly, the majority of the Ohio Court of Appeals concluded that Brown could be
    held responsible for the murder of John Hill and for the charged gun specifications, in part
    because the petitioner knew that at least one of his companions possessed a firearm.
    Nos. 06-4037/4043            Brown v. Konteh                                                Page 12
    Furthermore, the court reasoned that Brown, “through his participation in the crimes that
    occurred in the Hill brothers’ apartment, supported, assisted, encouraged, cooperated with,
    advised, or incited the principal in the commission of aggravated murder, and that the
    [petitioner] shared the criminal intent of the principal in the purposeful killing of John Hill.”
    Brown, 
    2004 WL 1277498
    , at *16.
    One judge of the state appellate court dissented in part. In that partial dissent, Judge
    Bryant stated that, because the murder of John Hill was not necessary to carry out the
    purposes of the group’s criminal activities, and because the evidence at trial did not
    necessarily place Brown in the back bedroom where Hill was murdered, the constitutional
    evidentiary standard for criminal convictions had not been satisfied. See 
    id. at *20
    (Bryant,
    J., concurring in part and dissenting in part).
    After Brown filed his habeas corpus petition in federal court, the district judge
    referred the matter to a magistrate judge for an initial determination of facts and a
    recommended disposition. Noting the federal courts’ limited discretion in most habeas
    review, the magistrate judge quoted extensively from the state appellate court opinion and
    recommended denial of the petition. The district court adopted that recommendation,
    entered an order finding the trial evidence constitutionally sufficient to sustain Brown’s
    convictions, and denied the petition for habeas corpus relief in its entirety. Following denial
    of the petitioner’s subsequent motion to alter or amend that judgment, Brown perfected this
    appeal.
    II. DISCUSSION
    A. Standard of Review
    At the outset, it is important to recognize, as did the magistrate judge in this case, just
    how limited is our review in a habeas proceeding. Pursuant to the provisions of AEDPA,
    a federal court may not grant the writ unless the state court adjudication on the merits either:
    (1) resulted in a decision that was contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by the
    Supreme Court of the United States; or
    (2) resulted in a decision that was based upon an unreasonable determination
    of the facts in light of the evidence presented in the State court proceeding.
    Nos. 06-4037/4043          Brown v. Konteh                                              Page 13
    28 U.S.C. § 2254(d).
    As explained by the United States Supreme Court in Williams v. Taylor, 
    529 U.S. 362
    , 412-13 (2000):
    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 this Court
    on a question of law or if the state court decides a case differently than this
    Court has on a set of materially indistinguishable facts. Under the
    “unreasonable application” clause, a federal habeas court may grant the writ
    if the state court identifies the correct governing legal principle from this
    Court’s decisions but unreasonably applies that principle to the facts of the
    prisoner’s case.
    In deciding whether a state court ruling involved an “unreasonable application” of federal
    law, a habeas court does not focus merely upon whether the state court decision was
    erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the
    state court’s application of clearly-established federal law was objectively unreasonable. See
    
    id. at 409-11.
    In an appeal from a denial of habeas relief, in which a petitioner challenges the
    constitutional sufficiency of the evidence used to convict him, we are thus bound by two
    layers of deference to groups who might view facts differently than we would. First, as in
    all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial
    testimony and exhibits 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. See
    Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). In doing so, we do not reweigh the evidence,
    re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See
    United States v. Hilliard, 
    11 F.3d 618
    , 620 (6th Cir. 1993). Thus, even though we might
    have not voted to convict a defendant had we participated in jury deliberations, we must
    uphold the jury verdict if any rational trier of fact could have found the defendant guilty after
    resolving all disputes in favor of the prosecution. Second, even were we to conclude that a
    rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on
    habeas review, we must still defer to the state appellate court’s sufficiency determination
    as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).
    Nos. 06-4037/4043           Brown v. Konteh                                            Page 14
    Cognizant of these mandated glosses upon our review, we undertake an examination
    of the sufficiency of the evidence for each of the counts of the indictment under which
    Brown was convicted. Again, we emphasize, before beginning this evaluation, that we
    cannot rely simply upon our own personal conceptions of what evidentiary showings would
    be sufficient to convince us of the petitioner’s guilt. We cannot even inquire whether any
    rational trier of fact would conclude that petitioner Brown is guilty of the offenses with
    which he was charged. Instead, we must determine whether the Ohio Court of Appeals itself
    was unreasonable in its conclusion that a rational trier of fact could find Brown guilty
    beyond a reasonable doubt based upon the evidence introduced at trial. See, e.g., Knowles
    v. Mirzayance, 
    129 S. Ct. 1411
    , 1420 (2009) (“The question ‘is not whether a federal court
    believes the state court’s determination . . . was incorrect but whether that determination was
    unreasonable – a substantially higher threshold.’”) (quoting Schriro v. Landrigan, 
    550 U.S. 465
    , 473 (2007)).
    B. Crimes Committed Against Emmitt Grant
    Aggravated Burglary (Count 1)
    Brown has not challenged, either in this appeal or before the Ohio Court of Appeals,
    his conviction for the aggravated burglary of Emmitt Grant’s apartment. Consequently, we
    deem any objection to the legal sufficiency of the evidence offered to prove the petitioner’s
    guilt of that offense to have been waived. See, e.g., Bickel v. Korean Air Lines Co., 
    96 F.3d 151
    , 153 (6th Cir. 1996).
    Aggravated Robbery (Count 2)
    Under Ohio law, “[n]o person . . . committing a theft offense . . . shall . . . [h]ave a
    deadly weapon on or about the offender’s person or under the offender’s control and either
    display the weapon, brandish it, indicate that the offender possesses it, or use it[,] [or]
    [i]nflict, or attempt to inflict, serious physical harm on another.”              See O.R.C.
    §§ 2911.01(A)(1) and (3). Should an individual commit such a theft offense while using,
    displaying, or brandishing a weapon, or while inflicting serious physical harm on another,
    that person will be guilty of aggravated robbery.
    Nos. 06-4037/4043         Brown v. Konteh                                            Page 15
    A wrongdoer need not personally steal items from another; personally use, display,
    or brandish a weapon; or personally inflict serious physical harm on a victim in order to
    justify conviction pursuant to the provisions of section 2911.01(A) of the Ohio Revised
    Code. Rather, an individual like Brown may be found guilty of aggravated robbery simply
    by aiding or abetting another person in the commission of the offense. To be liable as an
    aider or abettor, however, “mere association with a principal offender is not enough . . . .
    [T]here must be some level of active participation by way of providing assistance or
    encouragement.” State v. Nievas, 
    700 N.E.2d 339
    , 343 (Ohio Ct. App. 1997) (citation
    omitted). In the words of the Ohio Supreme Court, “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. Such intent may be inferred from the circumstances surrounding the crime.”
    
    Johnson, 754 N.E.2d at 801
    . Indeed, the intent necessary to support a conviction “may be
    inferred from presence, companionship and conduct before and after the offense is
    committed.” State v. Mootispaw, 
    674 N.E.2d 1222
    , 1224 (Ohio Ct. App. 1996).
    In this case, Brown insists that he was merely present in Grant’s apartment – albeit
    beating the victim mercilessly – while co-defendant Cortez Smith was vandalizing the
    property. Furthermore, because the petitioner had met Smith only that evening, he claims
    that he cannot be held accountable for the aggravated robbery because he was not then in a
    position to know of Smith’s criminal intentions when Smith entered Grant’s apartment after
    the petitioner began his assault on the victim.
    As explained above, however, the Ohio state law offense of aggravated robbery is
    complete upon the commission of any “theft offense” accompanied by the infliction of
    “serious physical harm on another.” O.R.C. § 2911.01(A)(3). Brown clearly committed a
    “theft offense” and clearly inflicted “serious physical harm on” Emmitt Grant. Pursuant to
    the provisions of section 2913.01 of the Ohio Revised Code, a “theft offense” includes,
    among other things, “[a] violation of section . . . 2911.11 . . . of the Revised Code.” O.R.C.
    § 2913.01(K)(1). Section 2911.11 criminalizes aggravated burglary, an offense to which
    Brown has admitted by failing to contest it in state and federal court proceedings. In any
    event, even had the aggravated burglary conviction been challenged, the statutory definition
    of “theft offense” also includes simple burglary, O.R.C. § 2911.12, which entails merely
    Nos. 06-4037/4043           Brown v. Konteh                                                 Page 16
    trespassing in an occupied structure with an intent to commit “any criminal offense.”
    Brown’s entry into Grant’s apartment to assault the victim thus satisfies one prong of the
    aggravated robbery evidentiary requirement. The brutal beating of Grant that included
    hitting him in the head with furniture and tightening a cable around his neck so securely that
    ligature marks were later seen by witnesses further satisfies the “serious physical harm”
    component of the offense and justifies the state court decision to find sufficient evidence of
    petitioner Brown’s guilt of aggravated robbery. Because the Ohio Court of Appeals’s ruling
    on the claim of insufficient evidence relating to the charge of aggravated robbery of Emmitt
    Grant thus was not unreasonable, the district court did not err in denying habeas relief on this
    issue.
    1
    Attempted Murder (Count 3)
    The petitioner was also convicted at trial of the attempted murder of Emmitt
    Grant. Grant testified that he was severely beaten in his own apartment, that he was
    struck multiple times in the head with a small table, and that a cable cord was wrapped
    around his neck tightly enough that ligature marks could be seen. Brown insists on
    appeal, however, that he could not be held responsible for that crime because no trial
    witness identified him as one of Grant’s assailants.
    Pursuant to the provisions of section 2903.02(B) of the Ohio Revised Code, “[n]o
    person shall cause the death of another as a proximate result of the offender’s
    committing or attempting to commit an offense of violence that is a felony of the first
    or second degree and that is not [voluntary manslaughter] or [involuntary
    manslaughter].” Nor shall a person attempt to murder another individual by “purposely
    or knowingly, and when purpose or knowledge is sufficient culpability for the
    commission of an offense, [engaging] in conduct that, if successful, would constitute or
    result in [murder].” O.R.C. § 2923.02(A).
    1
    No discussion of any habeas corpus claim related to the charge in Count 4 of the indictment
    alleging felonious assault of Grant is required, because that charge merged into the attempted murder
    conviction under Count 3.
    Nos. 06-4037/4043          Brown v. Konteh                                          Page 17
    Brown is correct that the testimony of no other witness definitively identifies him
    as one of the assailants in Grant’s apartment at the time of the beating and partial
    strangulation of the victim. The petitioner’s own statement to the police, however,
    indicates that he was indeed an active participant in the brutal beating of Emmitt Grant.
    In Brown’s own words, “I’m standing up against the wall like this with the guy like this;
    and I’m punching him in the ribs, you know what I’m saying. [A companion] hit him
    in the head, and I’m punching him in the ribs.” Although Brown disclaimed knowledge
    of any cord being placed around Grant’s neck, other evidence of the petitioner’s
    involvement in the attack was placed before the finders-of-fact; as a result, the Ohio
    Court of Appeals clearly was not unreasonable in concluding that Brown at least aided
    and abetted those individuals who assaulted Grant so viciously that the attack could have
    resulted in the victim’s death. The district court’s denial of habeas relief on this ground
    thus must be affirmed under prevailing AEDPA standards.
    C. Crimes Committed Against Jerramie and John Hill
    Aggravated Burglary (Count 5)
    Brown has not challenged, either in this appeal or before the Ohio Court of
    Appeals, his conviction for the aggravated burglary of the Hill brothers’ apartment.
    Consequently, we deem any objection to the legal sufficiency of the evidence offered to
    prove the petitioner’s guilt of that offense to have been waived. See, e.g., 
    Bickel, 96 F.3d at 153
    .
    Aggravated Robbery (Counts 6 and 7)
    As stated previously, Ohio law defines aggravated robbery, in part, as a theft
    offense accompanied by the infliction, or attempted infliction, of serious physical harm
    on another. See O.R.C. § 2911.01(A)(3). Although Jerramie Hill could not positively
    identify any of the individuals who broke into his apartment in the early morning hours
    of August 14, 2001, in Brown’s own statement to the police he admitted that he and at
    least one of his companions that night had indeed broken into the Hills’ apartment and
    assaulted the brothers. Furthermore, LaToya Dixon, from the vantage point of her own
    Nos. 06-4037/4043        Brown v. Konteh                                          Page 18
    apartment, was able to see one of Brown’s companions leaving the apartment that night
    with a stack of compact discs. Jerramie Hill also testified that not only were numerous
    compact discs taken from his apartment, but he was also missing a video game and video
    game player, a television, and a statue of a dragon.
    In any event, the petitioner has conceded, through his failure to challenge the
    propriety of his aggravated burglary convictions in either state or federal court, that he
    is guilty of committing a “theft offense” against the Hills. See O.R.C. § 2913.01(K)(1)
    (defining “theft offense” as, among other crimes, a violation of the statute criminalizing
    aggravated burglary). That concession, in conjunction with Brown’s own statement to
    the police admitting that he “inflict[ed] . . . serious physical harm on another”
    established all the necessary elements of the offense of aggravated robbery. Indeed, the
    petitioner told police that he began assaulting Jerramie Hill in Hill’s own apartment, with
    the beating occurring both in the front room of the dwelling and in the back bedroom.
    According to Brown:
    I’m hitting him – hitting him, hitting him – just I’m hitting him. He hit
    – you know what I’m saying. I’m hitting.
    .....
    He – I think he was probably was unconscious or something, ‘cause I hit
    him a pretty good amount of times with my hand ‘cause like I said, my
    whole – I mean, I was at work, and I had to go home because my whole
    hand was swollen.
    Furthermore, while Brown was beating Jerramie Hill, James “Rock” Ingram was also
    in the apartment “fighting the other guy” -- John Hill.
    On direct appeal, the Ohio Court of Appeals construed the evidence at trial in the
    light most favorable to the prosecution and concluded that “by assaulting Jerramie Hill
    in the Hill brothers’ apartment while one of defendant’s companions burglarized the Hill
    brothers’ apartment, . . . [the] defendant was connected to or involved with the
    aggravated robber[y] of . . . the Hill brothers.” The state court thus found that a
    reasonable trier of fact could “conclude defendant supported, assisted, or cooperated in
    the aggravated robber[y] of . . . the Hill brothers.” Such a conclusion is not unreasonable
    Nos. 06-4037/4043            Brown v. Konteh                                                   Page 19
    in light of the evidence contained in the appellate record. Consequently, we are not
    authorized to reverse the district court’s denial of habeas relief on this ground.
    Attempted Murder of Jerramie Hill (Count 8)2
    The petitioner argues ineffectively that he should not have been convicted of the
    attempted murder of Jerramie Hill because Hill could not identify Brown as his assailant
    and because no other witness testified that Brown was indeed the person who brutally
    beat Jerramie Hill. Those argumentative statements are true – as far as they go. What
    the petitioner fails to mention, however, is the fact that Brown’s own statement to the
    police contains his admission and detailed description of his entry into the Hills’
    apartment and of his savage attack upon Jerramie Hill. In fact, that beating was so
    violent that Hill lost consciousness and Brown later was forced to leave work and return
    home because his hand was swollen from repeatedly striking the victim.
    The Ohio Court of Appeals, “construing the evidence in favor of the prosecution,
    [found] a trier of fact reasonably could conclude that defendant engaged in conduct that,
    if successful, would result in purposely causing the death[ ] of . . . Jerramie Hill.” Such
    a conclusion that the prosecution established the elements of the offense of attempted
    murder, see O.R.C. §§ 2903.02 and 2923.02(A), is nothing if not reasonable. We thus
    affirm the district court’s conclusion denying habeas relief on the petitioner’s claim
    related to his conviction for the attempted murder of Jerramie Hill.
    2
    Just as the indictment count alleging felonious assault upon Emmitt Grant merged with the
    petitioner’s conviction for the attempted murder of Grant, Count 9 of the indictment alleging a felonious
    assault upon Jerramie Hill merged with the conviction of Brown for the attempted murder of Hill.
    Nos. 06-4037/4043           Brown v. Konteh                                                 Page 20
    Aggravated Murder of John Hill (Counts 10 and 11)3
    On appeal, Brown also challenges the constitutionality of his conviction for
    aiding and abetting the aggravated murder of John Hill during the commission of an
    aggravated robbery. He contends that the prosecution could not establish his guilt of that
    offense beyond a reasonable doubt because “[t]he record is bereft of any evidence that
    Gerald Brown intended to purposefully cause the death of John Hill,” because there was
    no testimony or evidence that Brown planned to commit an aggravated robbery, and
    because no evidence linked the petitioner to the actual killer. See Appellant’s Br. at 21.
    In addressing the challenge to the sufficiency of the evidence for this conviction
    on direct appeal, the Ohio Court of Appeals explained:
    Pursuant to [the version of Ohio Revised Code Section 2903.01 in effect
    at the time of the commission of the crimes at issue]:
    (A) No person shall purposely, and with prior calculation
    and design, cause the death of another * * *.
    (B) No person shall purposely cause the death of
    another * * * while committing or attempting to commit,
    or while fleeing immediately after committing or
    attempting to commit, kidnapping, rape, aggravated
    arson, arson, aggravated robbery, robbery, aggravated
    burglary, burglary, or escape.
    ***
    (F) Whoever violates this section is guilty of aggravated
    murder, and shall be punished as provided in section
    2929.02 of the Revised Code.
    Here, we find there is no evidence that defendant purposely, and with
    prior calculation and design, caused the death of John Hill (see former
    R.C. 2903.01[A]), nor is there evidence that defendant purposely caused
    the death of John Hill while committing or attempting to commit one of
    the enumerated crimes under former R.C. 2903.01(B).
    3
    The conviction of the petitioner for Count 10 (aggravated murder of John Hill during the
    aggravated burglary of the Hills’ apartment) merged with the conviction of the petitioner for Count 11
    (aggravated murder of John Hill during the aggravated robbery of Hill).
    Nos. 06-4037/4043      Brown v. Konteh                                          Page 21
    Therefore, construing the evidence in favor of the prosecution, we must
    determine whether there is sufficient evidence that defendant aided and
    abetted the principal in the aggravated murder of John Hill. For
    defendant to have aided and abetted the principal in the aggravated
    murder of John Hill, the evidence must show that defendant supported,
    assisted, encouraged, cooperated with, advised, or incited the principal
    in the commission of aggravated murder and that defendant shared the
    criminal intent of the principal to commit aggravated murder.
    ***
    In this case, defendant participated in the assault of Emmitt Grant during
    which a gun fell from the pants of one of Emmitt Grant’s assailants and
    landed upon the floor of Grant’s apartment. During the fight, Grant
    heard others in the background scream, “Get your gun, get your gun. *
    * * He’s about to get your gun.” Grant’s hand was then kicked away
    from the gun that had hit the floor. Furthermore, Cortez Smith testified
    that he saw an unidentified person pick up a gun after it dropped to the
    floor.
    Based upon this evidence, we find a trier of fact reasonably could infer
    that defendant was aware that someone in the group may have had a gun
    when defendant and his companions later committed crimes in the Hill
    brothers’ apartment, which resulted in the shooting and death of John
    Hill. Furthermore, under these circumstances, we find a trier of fact
    reasonably could infer defendant acquiesced in the use of a gun.
    Moreover, construing the evidence in favor of the prosecution, because
    the endangerment of John Hill’s life began in the apartment courtyard
    wherein John Hill and his brother were accosted, and then in apparently
    short order the endangerment progressed to the Hill brothers’ apartment
    where John Hill was murdered, we find that a trier of fact reasonably
    could find that the attack on the Hill brothers in their apartment, which
    resulted in the murder of John Hill, was a natural and probable
    consequence of the attack that had initially begun in the courtyard.
    Additionally, we find that, beyond a reasonable doubt, a trier of fact
    reasonably could conclude that defendant engaged in a common design
    with others to rob the Hill brothers by the use of force and violence, and
    that John Hill’s murder was a natural and probable consequence given
    the force and violence used in the robbery, which created circumstances
    that in all probability would endanger human life.
    Accordingly, . . . we find sufficient evidence showing that defendant,
    through his participation in the crimes that occurred in the Hill brothers’
    apartment, supported, assisted, encouraged, cooperated with, advised, or
    incited the principal in the commission of aggravated murder, and that
    Nos. 06-4037/4043        Brown v. Konteh                                          Page 22
    defendant shared the criminal intent of the principal in the purposeful
    killing of John Hill.
    State v. Brown, 
    2004 WL 1277498
    , at *13, 16 (citations and internal quotation marks
    omitted).
    Brown’s objections to the district court’s denial of habeas relief on this ground
    are meritless. Although it is true that no evidence adduced at trial established that the
    petitioner personally intended, with prior calculation and design or even during the
    commission of another felony, to kill John Hill, demonstration of such an intent is not
    the only manner in which criminal liability for the murder may be imposed upon Brown.
    Indeed, evidence was before the triers of fact that Brown and his cohorts engaged in an
    unprovoked attack upon both John and Jerramie Hill, an attack that escalated into a full-
    blown, strong-arm robbery. Given Brown’s active participation in the physical beatings
    and home invasion, there is no question that had John Hill died as a result of a physical
    beating that was coordinated with Brown’s beating of Jerramie Hill in furtherance of a
    robbery, the petitioner would be liable for aiding and abetting that death. The fact that
    the beating of John Hill escalated into a shooting death in no way exonerates the
    petitioner from complicity in the criminal deed, especially given the record evidence that
    Brown had to have been aware, at least since the beating of Emmitt Grant, that one of
    his companions – other than Cortez Smith – was in possession of a handgun.
    The petitioner, and the dissenting judge on the Ohio Court of Appeals panel,
    insist that the Ohio case of State v. Trocodaro, 
    301 N.E.2d 898
    (Ohio Ct. App. 1973),
    requires that Brown’s aggravated murder conviction be overturned. In Trocodaro, the
    state court held that “unless one is in pursuance of a conspiracy previously formed, his
    involvement in an altercation which although connected with, is not the specific
    altercation occasioning, a homicide should not be held as a principal under the theory
    of aiding and abetting where he has neither actually incited, nor encouraged the
    perpetrator of the homicide.” 
    Id. at 902-03
    (emphasis added).
    Obviously, Brown believes that the appellate record contains no evidence that
    he did, in fact, incite or encourage at least one of his companions to engage in actions
    Nos. 06-4037/4043          Brown v. Konteh                                          Page 23
    likely to lead to John Hill’s death. The majority of the Ohio Court of Appeals panel that
    reviewed the petitioner’s convictions believed, however, that Brown was indeed guilty
    of such encouragement.
    The petitioner did indicate in his statement to the police that he “was pretty
    heated too from that first previous fight (with Grant),” that his adrenaline was “still
    pumping,” and that he was “ready to go.” He also admitted that he was hitting Jerramie
    Hill, “hitting him, hitting him -- just I’m hitting him,” and that his attack was so vicious
    that Hill lost consciousness and that Brown’s hand became swollen. In light of such
    evidence, it is clearly possible that the fact-finders believed that Brown’s agitated state
    incited other individuals with him to escalate the fury with which they also attacked the
    Hill brothers. Whether such is in fact the case is, again, beside the point in this habeas
    appeal.     As long as we can conclude that the Ohio Court of Appeals was not
    unreasonable in determining that Brown was guilty of aggravated murder beyond a
    reasonable doubt, we must affirm the district court’s decision denying habeas corpus
    relief.
    Additionally, in an apparent effort to intimate that John Hill must have been
    murdered at some later time by some other individual, Brown also has emphasized
    throughout this prosecution that no gunshots were heard during the assaults on the Hills.
    Of course, such “negative evidence” is of little import in this case, because even though
    no one testified to hearing gunshots later that night, it is undeniable that John Hill was
    murdered by gunfire. Regardless of the presence or absence of such evidence, moreover,
    Brown’s challenge to the district court’s denial of habeas corpus relief on this claim must
    fail. As we held just last year in another Ohio habeas corpus appeal challenging the
    sufficiency of the convicting evidence:
    Even if we were to conclude, after reviewing the record and drawing all
    inferences in favor of the prosecution, that [the petitioner’s] convictions
    were not supported by sufficient evidence, the question would remain
    whether the Ohio Court of Appeals was unreasonable in concluding
    otherwise. “State court findings of fact are to be presumed correct unless
    the petitioner rebuts the presumption with clear and convincing
    evidence.” Sandgathe v. Maass, 
    314 F.3d 371
    , 376 (9th Cir. 2002). A
    Nos. 06-4037/4043        Brown v. Konteh                                         Page 24
    federal habeas court may not grant habeas relief “simply because that
    court concludes in its independent judgment that the state-court decision
    applied a Supreme Court case incorrectly.” Price v. Vincent, 
    538 U.S. 634
    , 641 (2003) (internal brackets omitted). It must further conclude that
    the state-court decision was objectively unreasonable. Williams v.
    Taylor, 
    529 U.S. 362
    , 409 (2000).
    Saxton v. Sheets, 
    547 F.3d 597
    , 607 (6th Cir. 2008).
    Regardless of how we, as individual jurists, would have viewed the evidence of
    Brown’s guilt had we been called to evaluate the strength of the prosecution’s case, we
    cannot escape the fact that the Ohio Court of Appeals was not unreasonable in choosing
    to put upon this case the gloss it did. As a result, we are compelled to conclude that the
    district court did not err in also denying habeas corpus relief to the petitioner on his
    challenge to the sufficiency of the evidence adduced to convict him of the aggravated
    murder (felony-murder) of John Hill.
    D. Gun Specification Convictions
    Brown also challenges the sufficiency of the evidence supporting his convictions
    for the various gun specifications charged in the indictment returned against him. The
    main thrust of this argument again appears to be a suggestion that we should view the
    evidence offered on the charges differently than did the Ohio Court of Appeals. We
    emphasize once more, however, that on habeas review, our task is not to reweigh or re-
    evaluate individual pieces of evidence but, rather, to determine only whether the state-
    court rulings on the merits of the issue were unreasonable.
    Each of the 11 counts of the indictment against Brown contained specifications
    alleged in accordance with the provisions of sections 2941.141 and 2941.145 of the Ohio
    Revised Code. Pursuant to section 2941.141, a one-year prison term may be imposed
    upon a defendant if “the offender had a firearm on or about the offender’s person or
    under the offender’s control while committing the offense.” Section 2941.145 authorizes
    a three-year prison term for a defendant who “had a firearm on or about the offender’s
    person or under the offender’s control while committing the offense and displayed the
    firearm, brandished the firearm, indicated that the offender possessed the firearm, or
    Nos. 06-4037/4043        Brown v. Konteh                                         Page 25
    used it to facilitate the offense.” (Emphasis added.) Furthermore, the Ohio Supreme
    Court has recognized that the statutory firearm specifications may be applied to
    defendants even if those defendants were not themselves in actual control of the
    weapons. See, e.g., State v. Powell, 
    571 N.E.2d 125
    , 127 (Ohio 1991) (defendant “may
    be charged under [the statute] on the basis of the possession of a firearm by any
    accomplice involved” in the charged offense).
    In addressing the propriety of the gun specifications found in this prosecution,
    we are again cognizant of our jurisprudential rule holding that issues not adequately
    developed or argued in the appellate briefs are deemed abandoned and thus not
    addressed by this court. See, e.g., United States v. Hough, 
    276 F.3d 884
    , 891 (6th Cir.
    2002). Consequently, because Brown alludes to the gun specifications imposed upon
    convictions for offenses alleged in Counts 1, 4, 5, and 9 of the indictment in only the
    most perfunctory of manners, if at all, we choose not to disturb those judgments.
    Additionally, the charge of aggravated murder committed during an aggravated burglary
    (Count 10) merged, by operation of law, with the charge of aggravated murder
    committed during an aggravated robbery, as alleged in Count 11 of the indictment, and
    thus can result in no further punishment for the petitioner.
    The Ohio Court of Appeals and the district court concluded that sufficient
    evidence existed in the record to support convictions for each gun specification on every
    count of the indictment against Brown. We disagree, however, with that blanket
    assertion and find some of those conclusions by the state court unsupported by any
    evidence and, therefore, unreasonable.
    Aggravated Robbery of Emmitt Grant (Count 2)
    As the rampage at the Beacon Hill Apartments began to unfold during the early
    morning hours of August 14, 2001, the petitioner and his cohorts engaged in a vicious
    assault upon Emmitt Grant in Grant’s apartment. During that beating, a handgun fell out
    of the clothing of one of the attackers and landed on the floor, before being kicked away
    out of Grant’s reach and being retrieved and re-hidden by one of the attackers.
    Consequently, evidence in the record establishes that the petitioner was aware, at least
    Nos. 06-4037/4043        Brown v. Konteh                                           Page 26
    at the time the gun fell to the floor, that one of his cohorts possessed a firearm. Because,
    as discussed in Section II.B. of this opinion, the Ohio Court of Appeals was not
    unreasonable in concluding that Brown was guilty of the aggravated robbery of Emmitt
    Grant by inflicting serious physical harm upon him during a theft offense, the state court
    was also not unreasonable in concluding that the petitioner could be held accountable
    for the possession of a firearm by one of his accomplices during that crime. See O.R.C.
    § 2941.141.
    Moreover, the state court was not unreasonable in upholding the application of
    the section 2941.145 firearm specification to the conviction for the aggravated robbery
    of Grant. A legitimate argument could be advanced that the momentary, accidental
    viewing of the firearm in Grant’s apartment when the gun fell to the floor does not
    constitute either “display” or “brandishing.” It is equally plausible, however, that the
    victim’s viewing of the weapon facilitated the offense by emphasizing to Grant the
    futility of resistance. Given our restrictive standard for reviewing the state court
    decision, we conclude that the district court did not err in denying habeas corpus relief
    on these grounds.
    Attempted Murder of Emmitt Grant (Count 3)
    The petitioner was aware of and was a willing participant in the brutal beating
    of Emmitt Grant that resulted in one of Brown’s attempted murder convictions. The
    attack on the victim continued after a handgun fell onto the floor, was kicked away from
    Grant, and was retrieved by another of Brown’s companions. Clearly then, the petitioner
    was aware of the possession of a firearm by one of his accomplices and was properly
    held accountable for the section 2941.141 specification. Furthermore, although a
    legitimate argument could be proffered that a gun is neither “displayed” nor
    “brandished” when it merely falls accidentally to the floor and is immediately retrieved
    and rehidden, it is also far from unreasonable to believe that such a momentary
    exhibition of the weapon facilitated the offense by indicating to the victim the dangers
    inherent in resistance. Thus, the district court did not err in determining that the Ohio
    Nos. 06-4037/4043        Brown v. Konteh                                            Page 27
    Court of Appeals was not unreasonable in applying both the section 2941.141 and the
    section 2941.145 firearm specifications to the petitioner for the Count 3 conviction.
    Aggravated Robberies of Jerramie and John Hill; Attempted Murder of Jerramie
    Hill (Counts 6, 7, and 8)
    Following the beating of Emmitt Grant, Brown and his companions broke into
    the Hills’ apartment and assaulted and robbed the brothers. By that time, the petitioner
    was aware that someone in his group was in possession of the firearm that had fallen
    onto the floor in Grant’s apartment. The state court’s findings that the specifications of
    section 2941.141 (possession of a firearm) were applicable to the crimes of aggravated
    robbery of the brothers and the attempted murder of Jerramie Hill thus were not
    unreasonable.
    Furthermore, because the state court was not unreasonable in surmising that the
    aggravated robbery and murder of John Hill occurred in relative temporal proximity, the
    application of the section 2941.145 specification for use of a firearm in the aggravated
    robbery of John Hill was proper. On the other hand, affirmance of the section 2941.145
    specification for either displaying, brandishing, indicating possession of, or using the
    firearm to facilitate the offenses of aggravated robbery and attempted murder of
    Jerramie Hill would require us to engage in mere speculation. No evidence in the record
    indicates that a gun was actually used or even displayed in the perpetration of those two
    specific crimes. Consequently, the Ohio Court of Appeals decision to the contrary was
    necessarily unreasonable and the petitioner is entitled to relief on those bases.
    Aggravated Murder of John Hill During an Aggravated Robbery (Count 11)
    The Ohio Court of Appeals also affirmed the application of both the section
    2941.141 and section 2941.145 firearm specifications to Brown’s conviction for the
    aggravated murder of John Hill. Having concluded that the petitioner can be held
    accountable for John Hill’s death, we do not find the state court’s firearm determination
    to be unreasonable. Medical evidence offered at the petitioner’s trial explained that John
    Hill died from multiple gunshot wounds. Logically, then, the principal in the actual
    murder of the victim not only possessed a firearm, but clearly brandished it in the
    Nos. 06-4037/4043        Brown v. Konteh                                          Page 28
    commission of the offense. We thus affirm the district court’s denial of habeas corpus
    relief on this ground.
    E. Motion to Alter or Amend the Judgment
    In a final appellate issue, Brown raises the somewhat scurrilous allegation that
    the district judge in this habeas matter adopted the report and recommendation of the
    magistrate judge without adequate review and consideration of the record. The
    petitioner bases his argument in this regard solely upon the fact that “only eight working
    days” passed between the filing of objections to the report and recommendation and the
    filing of the district court order adopting the magistrate judge’s submission. According
    to Brown, because the transcript of the petitioner’s trial was 661 pages long, the district
    judge could not have performed a detailed review of that transcript in such a compressed
    time period. Brown’s appellate brief concedes, however, that 13 total days actually
    elapsed between the filing of his objections to the report and recommendation and the
    district court’s order. Despite what Brown may think, federal judges do work on
    weekends and holidays, at night, and during lunch periods. Over the span of 13 days,
    and even over a mere eight days, a conscientious jurist could review 661 pages of
    transcript, digest objections offered by a lawyer to an adverse ruling, and issue a brief
    order adopting the magistrate judge’s recommendation. The petitioner’s challenge to the
    denial of his motion to alter or amend the judgment is thus patently without merit.
    III. CONCLUSION
    For the reasons discussed above, we AFFIRM in part and REVERSE in part the
    denial of petitioner Brown’s habeas corpus petition. Specifically: as to Count 1 of the
    indictment (aggravated burglary of Emmitt Grant), because Brown did not challenge the
    decision rendered regarding this conviction, we AFFIRM the denial of habeas relief on
    the conviction itself and on both firearm specifications; as to Count 2 of the indictment
    (aggravated robbery of Emmitt Grant), we AFFIRM the denial of habeas relief on the
    conviction and on both firearm specifications; as to Count 3 of the indictment (attempted
    murder of Emmitt Grant), we AFFIRM the denial of habeas relief on the conviction and
    Nos. 06-4037/4043        Brown v. Konteh                                           Page 29
    on both firearm specifications; as to Count 4 of the indictment (felonious assault of
    Emmitt Grant), because Brown did not challenge the decision rendered regarding this
    conviction, we AFFIRM the denial of habeas relief on the conviction itself as well as on
    both firearm specifications; as to Count 5 of the indictment (aggravated burglary of the
    Hill brothers), again because the petitioner failed to challenge properly the district court
    decision regarding this conviction, we AFFIRM the denial of habeas relief on the
    conviction and on both firearm specifications; as to Count 6 of the indictment
    (aggravated robbery of Jerramie Hill), we AFFIRM the denial of habeas relief on the
    aggravated robbery conviction and on the section 2941.141 specification, but REVERSE
    the denial of habeas relief on the section 2941.145 specification; as to Count 7 of the
    indictment (aggravated robbery of John Hill), we AFFIRM the denial of habeas relief
    on the conviction and on both firearm specifications; as to Count 8 of the indictment
    (attempted murder of Jerramie Hill), we AFFIRM the denial of habeas relief on the
    actual conviction and on the section 2941.141 specification, but REVERSE the denial
    of habeas relief on the section 2941.145 specification; as to Count 9 of the indictment
    (felonious assault on Jerramie Hill), because Brown failed to challenge properly the
    district court determination, we AFFIRM the denial of habeas relief on the substantive
    conviction and on both firearm specifications; as to Count 10 of the indictment
    (aggravated murder of John Hill during an aggravated burglary), we acknowledge that
    any conviction under this count necessarily merged with the conviction for the
    aggravated murder of John Hill alleged in Count 11; and, as to Count 11 of the
    indictment (aggravated murder of John Hill during an aggravated robbery), we AFFIRM
    the denial of habeas relief on the conviction itself and on both firearm specifications.
    We also AFFIRM the district court’s denial of the petitioner’s motion to alter or
    amend the judgment and REMAND this matter to the district court for entry of an order
    consistent with this opinion.