Johnson v. Warden Chillicothe Correctional Institution

Filing 18

OPINION AND ORDER adopting Report and Recommendations re 15 Report and Recommendations.. Signed by Judge James L. Graham on 9/15/2016. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION VINCENT JOHNSON, CASE NO. 2:15-CV-00971 JUDGE JAMES L. GRAHAM Magistrate Judge Elizabeth A. Preston Deavers Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On September 6, 2016, the Magistrate Judge issued a Report and Recommendation recommending that this action be dismissed. (ECF No. 15.) Petitioner has filed an Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 16.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 16) is OVERRULED. The Report and Recommendation (ECF No. 15) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. This action involves Petitioner’s convictions after a jury trial in the Franklin County Court of Common Pleas on two counts of rape, one count of attempted rape, one count of kidnapping, one count of abduction, and one count of domestic violence, with specifications. Petitioner asserts in these federal habeas corpus proceedings that the trial court abused its discretion by permitting admission of DNA evidence in violation of Ohio evidentiary rules, his right to due process, and equal protection (claim one); and that he was denied his right to grand jury findings because the trial court improperly amended the indictment under Ohio Criminal Rule 7(D) (claim two). The Magistrate Judge recommended dismissal of these claims on the merits. Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claims on the merits. Petitioner maintains that he fairly presented claim one as a federal constitutional issue to the Ohio courts and that the state appellate court unreasonably denied him relief. Petitioner also argues that amendment of the indictment to delete repeat violent offender specifications from Counts 7 and 8, which charged him with abduction and domestic violence, based on an apparent typographical error “negated the validity of the offenses” thereby denying him the right to a fair trial. Objection (ECF No. 16, PageID# 928.) Petitioner’s arguments are not well taken. As discussed by the Magistrate Judge, to the extent that Petitioner’s claims implicate the alleged violation of state evidentiary rules or state law, they fail to present an issue warranting federal habeas corpus relief. 28 U.S.C. § 2254(a). Further, and contrary to Petitioner’s allegation here, he failed to fairly present claim one to the state courts as a federal constitutional issue. Moreover, the record fails to reflect that the amendment of the indictment to correct a typographical error violated the Constitution. For the foregoing reasons and for the reasons detailed in the Magistrate Judge’s Report and Recommendation, Petitioner’s Objection (ECF No. 16) is OVERRULED. The Report and Recommendation (ECF No. 15) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. IT IS SO ORDERED. Date: September 15, 2016 ______s/James L. Graham_______ JAMES L. GRAHAM United States District Judge 2

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