King v. Morgan
Memorandum of Opinion and Order: For the reasons set forth herein and for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore, the Court certifies, purs uant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). Judge Patricia A. Gaughan on 4/5/17. re 31 (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
DeLawrence A. King,
Donald Morgan, Warden
CASE NO. 1:12 CV 2000
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Knepp (Doc. 31) which recommends denial of the Petition for Writ of Habeas Corpus
pending before the Court. Petitioner filed objections to the recommendation. For the
following reasons, the Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides, “The judge must determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or modify any
proposed finding or recommendation.”
Petitioner is incarcerated following his murder convictions. This is a “second-in-time”
habeas petition challenging his conviction following a new sentencing proceeding. This
matter is before the Court upon remand by the court of appeals for consideration of the five
habeas grounds which were originally dismissed as successive. The Magistrate Judge found
that none of the grounds warrant issuance of the writ. This Court agrees.
The Magistrate Judge determined that Ground One, asserting a defective indictment,
was non-cognizable on habeas review given that there is no federal constitutional right to an
indictment in state criminal proceedings. Only fair notice of the charges is required, and
petitioner’s indictment clearly stated the essential elements of the crimes of murder and
felonious assault with sufficient factual allegations to apprise him of the charges. Petitioner
objects that the indictment did not specify the underlying offense to the felony murder
charges. Petitioner presented this argument to the Magistrate Judge who found that fair notice
was satisfied. The Court agrees that the indictment had sufficient information to provide
petitioner with adequate notice and the opportunity to defend himself.
The Magistrate Judge determined that Ground Two, asserting that the convictions
were against the manifest weight of the evidence, failed on the merits as the appellate court
decision was neither contrary to, nor an unreasonable application of, Jackson v. Virginia, 443
U.S. 307 (1979). Noting the “nearly insurmountable hurdle” of asserting a claim such as this,
the Magistrate Judge addressed the basis of petitioner’s argument and whether petitioner had
met his burden under Jackson. He concluded that he had not. Petitioner’s objections present
nothing further to disturb that conclusion.
The Magistrate Judge found remaining Grounds Five, Six, and Seven, asserting
ineffective assistance of appellate counsel, to be procedurally defaulted. And, even if
preserved, would fail on the merits. In his objections, petitioner does not present persuasive
arguments to show that these claims are not procedurally defaulted or, if preserved, have
For these reasons and those stated by the Magistrate Judge, whose Report and
Recommendation is incorporated herein, the Petition for Writ of Habeas Corpus is denied.
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore,
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could
not be taken in good faith, and that there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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