Hawkins v. Warden, Ross Correctional Institution
ORDER and REPORT AND RECOMMENDATION: Magistrate Judge DENIES as moot 2 MOTION for Leave to Proceed in forma pauperis and RECOMMENDS claim two of 1 Petition for Writ of Habeas Corpus be DISMISSED. Respondent is ORDERED TO SHOW CAUSE within sixt y (60) days of the date of this Order as to claim one. Petitioner may, not later than twenty-one (21) days after the answer is filed, file and serve a Traverse to the answer. Objections to R&R due by 6/16/2017. Signed by Magistrate Judge Kimberly A. Jolson on 6/2/2017. (ew)(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
CASE NO. 2:17-CV-466
JUDGE GEORGE C. SMITH
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. As an initial matter, Petitioner filed a motion to proceed in forma pauperis but
paid the filing fee. (See Docket, Doc. 2). Consequently, that motion is DENIED as moot.
This matter is also before the Court on its own motion to consider the sufficiency of the
petition pursuant to rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons that follow, the Magistrate Judge ORDERS Respondent to show
cause as to claim one, and RECOMMENDS that claim two be DISMISSED.
CLAIM ONE (Ineffective Assistance of Counsel)
The Respondent is DIRECTED to file an answer in response to claim one of the Petition
that conforms with the requirements of Rule 5 of the Rules Governing Section 2254 Cases within
SIXTY (60) days of the date of the filing of this Order. Specifically, said answer shall respond
to the allegations in claim one, raise any affirmative defense relied on by Respondent, and state
whether, from Respondent’s perspective, claim one is barred by a failure to exhaust state
remedies, a procedural bar, non-retroactivity, or a statute of limitations.
Before filing the answer, the Respondent shall file those portions of the state court record
needed to adjudicate this case. When the record is filed electronically, the Court’s CM/ECF
filing system will affix a unique PageID number to each page of the record, displayed in the
upper right-hand corner of the page. All papers filed in the case thereafter by either party shall
include record references to the PageID number. Prior to filing the state court record, the
Warden’s counsel shall ensure that any borders on parts of the record (typically, court reporter
transcripts) do not obscure the PageID number when the page is filed. The record shall be
indexed by insertion of “bookmarks” in the .pdf version of the state court record uploaded to the
Court’s CM/ECF system, which display each exhibit and the name of that exhibit in the record.
As required by Fed. R. Civ. P. 5, a complete copy of the answer and state court record
with the PageID numbers must be served on Petitioner at the time of filing.
Petitioner may, not later than TWENTY-ONE (21 DAYS) after the answer is filed, file
and serve a Traverse to the answer.
The Clerk is DIRECTED to serve the Petition on Respondent and the Attorney General
Brian.Higgins@ohioattorneygeneral.gov and Habeas.firstname.lastname@example.org.
CLAIM TWO (Manifest Weight of the Evidence)
Facts and Procedural History
Petitioner challenges his December 2014 convictions after a jury trial in the Franklin
county Court of Common Pleas on aggravated murder, aggravated robbery, and kidnapping. He
is currently serving a sentence of life in prison without the possibility of parole. On March 31,
2016, the Ohio Tenth District Court of Appeals affirmed the judgment of the trial court. State v.
Hawkins, No. 15AP-35, 2016 WL 1286942 (Ohio Ct. App. 2016). On July 27, 2017, the Ohio
Supreme Court declined to accept jurisdiction of the appeal. State v. Hawkins, 146 Ohio St.3d
1473 (Ohio 2016). On May 30, 2017, Petitioner filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He asserts that his convictions are against the manifest
weight of the evidence (claim two).
Petitioner asserts that his convictions are against the manifest weight of the evidence.
This claim fails to provide a basis for federal habeas corpus relief. See Williams v. Jenkins, No.
1:15cv00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22, 2016) (citing Nash v. Eberlin, 258
F. App’x 761, 765, n.4 (6th Cir. 2007)); Norton v. Sloan, No. 1:16-cv-854, 2016 WL 525561, at
*5 (N.D. Ohio Feb. 9, 2017) (citing Ross v. Pineda, No. 3:10-cv-391, 2011 WL 1337102, at *3
(S.D. Ohio)) (“Whether a conviction is against the manifest weight of the evidence is purely a
question of Ohio law.”); see also Taylor v. Warden, Lebanon Correctional Inst., 2017 WL
1163858, at *10–11 (S.D. Ohio March 29, 2017) (same) (citations omitted).
Under Ohio law, a claim that a verdict was against the manifest weight of the evidence—
as opposed to one based upon insufficient evidence—requires the appellate court to act as a
“thirteenth juror” and review the entire record, weigh the evidence, and consider the credibility
of witnesses to determine whether “the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v.
Martin, 20 Ohio App.3d 172, 175 (1983); cf. Tibbs v. Florida, 457 U.S. 31 (1982). Since a
federal habeas court does not function as an additional state appellate court, vested with the
authority to conduct such an exhaustive review, petitioner’s claim that his convictions were
against the manifest weight of the evidence cannot be considered by this Court.
Claim two is without merit.
Therefore, the Magistrate Judge RECOMMENDS that claim two be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
For the foregoing reasons, Petitioner’s Motion to Proceed in forma pauperis (Doc. 2) is
DENIED as moot; Respondent is ORDERED to show cause as to claim one; and it is
RECOMMENDED that claim two be DISMISSED.
IT IS SO ORDERED.
Date: June 2, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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