Morrow v. Warden Mansfield Correctional Institution

Filing 15

ORDER adopting Report and Recommendations re 13 Report and Recommendations.. Signed by Judge James L Graham on 6/19/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES J. MORROW,
Petitioner,

CASE NO. 2:13-CV-279
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE ABEL

v.
TERRY TIBBALS, WARDEN,
Respondent.
OPINION AND ORDER
On May 27, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus be dismissed. Petitioner has
filed an Objection to the Magistrate Judge’s Report and Recommendation. This Court has
conducted a de novo review. See 28 U.S.C. § 636(b). For the reasons that follow, Petitioner’s
Objection, Doc. No. 14, is OVERRULED. The Report and Recommendation is ADOPTED
and AFFIRMED. This action is hereby DISMISSED.
This case involves Petitioner’s convictions after a jury trial on aggravated burglary,
aggravated robbery, kidnapping, theft, and the possession of criminal tools. The Ohio Fifth
District Court of Appeals affirmed Petitioner’s convictions and sentence, and the Ohio Supreme
Court denied Petitioner’s appeal. Petitioner asserts, in these habeas corpus proceedings, that he
was denied a fair trial because the trial court prohibited defense counsel from cross-examining
the alleged victim, Robert Croy, regarding his motive to lie (claim one); and that the trial court
improperly denied his motion to merge allied offenses of similar import (claim two). The
Magistrate Judge recommended the dismissal of both of these claims on the merits.

The

Magistrate Judge construed the petition additionally to raise a claim that the trial court

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improperly prohibited his attorney from cross-examining Croy regarding certain cellular phone
records. The Magistrate Judge recommended dismissal of that claim as procedurally defaulted.
Petitioner objects to the Magistrate Judge’s recommendations. He disputes the factual
finding of the state appellate court that evidence indicated Petitioner threw a cell phone
belonging to the alleged victim down a sewer so that he would no longer be in possession of the
fruits of the crime. Petitioner denies he took a cell phone from Croy. He states that he asked his
attorney to obtain phone records that would establish Croy was lying. Objection, Doc. No. 14,
PageID# 636. Petitioner also objects to the Magistrate Judge’s recommendation of dismissal as
procedurally defaulted his claim that the trial court denied him a fair trial when it prohibited
defense counsel from cross-examining Croy regarding certain cellular phone records. Petitioner
asserts, as cause for his failure to raise this claim on direct appeal, that he was denied effective
assistance of counsel. PageID# 636-37.
The factual findings of the state appellate court are presumed to be correct, 28 U.S.C.
2254(e), and Petitioner has failed to rebut the presumption of correctness of the state court’s
finding that the facts indicated that Petitioner threw a cell phone into the sewer. (See Trial
Transcript, Doc. 8-1, PageID# 308). Further, the factual finding regarding this issue does not
assist Petitioner in establishing any of his claims for relief. As discussed by the Magistrate
Judge, the denial of the effective assistance of counsel cannot constitute cause for Petitioner’s
procedural default, as Petitioner never presented such claim to the state courts.

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Petitioner’s Objection, Doc. No. 14, is OVERRULED.

The Report and

Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Date: June 19, 2014
_______s/James L. Graham ______
JAMES L. GRAHAM
United States District Judge

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