Hawkins v. Warden Ross Correctional Institution

Filing 13

OPINION AND ORDER adopting Report and Recommendations re 11 Report and Recommendations and denying 10 , the motion for leave to conduct discovery. This action is dismissed. Signed by Judge James L. Graham on 11/2/2016. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEE HAWKINS,
CASE NO. 2:15-CV-02743
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On May 31, 2016, the Magistrate Judge issued an Order and Report and
Recommendation denying Petitioner’s Motion for Leave to Conduct Discovery and to Expand
Record (ECF No. 10), and recommending that the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be dismissed. (ECF No. 11.) Petitioner has filed an Objection to
the Magistrate Judge’s Order and Report and Recommendation. (ECF No. 12.) 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. 12) is OVERRULED.

The Order and Report and

Recommendation (ECF No. 11) is ADOPTED and AFFIRMED. Petitioner’s Motion for Leave
to Conduct Discovery and to Expand Record (ECF No. 10) is DENIED. This action is hereby
DISMISSED.
This case involves Petitioner’s convictions after a jury trial in the Gallia County Court of
Common Pleas on aggravated murder, tampering with evidence, and abuse of a corpse.
Petitioner was sentenced to life in prison without the possibility of parole. The Ohio Fourth
District Court of Appeals affirmed the judgment of the trial court. State v. Hawkins, No. 13CA3,
2014 WL 1339804 (Ohio App. 4th Dist. March 21, 2014). Petitioner did not file an appeal. The

Ohio Court of Appeals also denied Petitioner’s application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). (ECF No. 9-1, PageID# 190.) The Ohio Supreme Court declined to
accept jurisdiction of the appeal. (PageID# 210.) Petitioner asserts in these proceedings that he
was denied the effective assistance of counsel because his attorney failed to object to admission
of gruesome details and photographs of the decedent’s body (claim one), and that he was denied
the effective assistance of appellate counsel based on his attorney’s failure to raise the issue on
direct appeal (claim two). Petitioner seeks expansion of the record to include a copy of all the
photographs admitted against him at trial.

The Magistrate Judge denied this request, and

recommended dismissal of claim one as procedurally defaulted and claim two as without merit.
Petitioner objects to the recommendations of the Magistrate Judge, and to the denial of his
request for expansion of the record.
According to Petitioner, he cannot rebut the presumption of correctness afforded the
factual findings of the state appellate court and thereby establish he is entitled to relief unless the
Court expands the record to include copies of such photographs, which he cannot obtain without
the assistance of the Court in view of his pro se indigent status. Petitioner asserts that the denial
of his motion for expansion of the record therefore constitutes a denial of due process. Petitioner
argues that the record is not complete, and this Court cannot properly determine whether the state
appellate court erroneously denied his Rule 26(B) application, without copies of the photographs
admitted against him.
However, the record does not support Petitioner’s arguments. Petitioner waived his claim
of the denial of the effective assistance of trial counsel by failing to raise the claim on direct
appeal, where he was represented by new counsel.

As cause for this procedural default,

Petitioner claims the denial of the effective assistance of appellate counsel. The state appellate

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court rejected such claim on the merits, because Petitioner had failed to identify any inadmissible
evidence presented at trial. The state appellate court held that Ohio law permits admission of the
type of photographs complained of. See Entry Denying Application to Reopen Direct Appeal
(ECF No. 9-1, PageID# 190-95). This Court is bound by that determination. See Miskel v.
Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (this Court must “defer to a state court's interpretation
of its own rules of evidence and procedure”) (citations omitted); Bennett v. Warden, Lebanon
Corr. Inst., 782 F.Supp.2d 466, 478 (S.D. Ohio March 15, 2011) (“[T]he state courts are the final
authority on state-law issues, the federal habeas court must defer to and is bound by the state
court's rulings on such matters.”) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“it is
not the province of a federal habeas court to re-examine state-court determinations on state law
questions.”)). Moreover, the state appellate court’s decision did not rest on any factual finding
regarding the content of the photographs at issue. This Court’s review of the copies of the
photographs at issue therefore will not assist him in establishing he is entitled to relief.
For these reasons, and for the reasons detailed in the Magistrate Judge’s Order and
Report and Recommendation, Petitioner’s Objection (ECF No. 12) is OVERRULED. The
Order and Report and Recommendation (ECF No. 11) is ADOPTED and AFFIRMED.
Petitioner’s Motion for Leave to Conduct Discovery and to Expand Record (ECF No. 10) is
DENIED. This action is hereby DISMISSED.
IT IS SO ORDERED.
Date: November 2, 2016

______s/James L. Graham________
JAMES L. GRAHAM
United States District Judge

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