Exon v. Warden North Central Correctional Institution

Filing 9

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Based on the foregoing analysis, the Magistrate Judge again concludes that the Petition herein should be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Pe titioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 11/14/2016. Signed by Magistrate Judge Michael R. Merz on 10/26/2016. (kpf)(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
WESTERN DIVISION AT DAYTON
JERRY EXON, JR.,
Petitioner,

:

- vs -

Case No. 3:16-cv-344
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

NEIL TURNER, WARDEN,
North Central Correctional Institution,
:
Respondent.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Objections (ECF No. 7) to the Magistrate Judge’s recommendation that the Petition be dismissed
with prejudice (Report and Recommendations, ECF No. 2; Supplemental Report and
Recommendations, ECF No. 6). Judge Rice has again recommitted the case for reconsideration
in light of the Objections (ECF No. 8).
No additional analysis is required as to Ground One, the claim of ineffective assistance of
trial counsel.
In Ground Two Mr. Exon complains about the use of other acts evidence at trial.
However, he argues the claim solely in terms of Ohio precedent (Objections, ECF No. 7, PageID
89). Even if what was done by the prosecutor here might violate Ohio law – a question this
Court cannot reach -- “[t]here is no clearly established Supreme Court precedent which holds
that a state violates due process by permitting propensity evidence in the form of other bad acts
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evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court
refused to reach the issue in Estelle v. McGuire, 502 U.S. 62 (1991).
In Ground Three, Mr. Exon complains the trial judge abused his discretion in admitting
other acts evidence. Both the Report and the Supplemental Report note that, even if the judge
did abuse his discretion, that is not a violation of the United States Constitution. Sinistaj v. Burt,
66 F.3d 804 (6th Cir. 1995).
In Ground Four Mr. Exon complains that the State did not prove “serious physical harm”
which he says is an element of the offense of robbery. Not so. Exon was charged with robbery
which only requires proof of the use of force and not that serious physical harm was caused. The
victim testified that Exon punched him in the face when the victim was attempting to retrieve
from Exon a carton of stolen cigarettes. That is sufficient evidence
In Ground Five Mr. Exon continues to argue that his conviction is against the manifest
weight of the evidence and refuses to acknowledge that is not a constitutional claim.

Conclusion

Based on the foregoing analysis, the Magistrate Judge again concludes that the Petition
herein should be DISMISSED WITH PREJUDICE.

Because reasonable jurists would not

disagree with this conclusion, Petitioner should be denied a certificate of appealability and the
Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and
therefore should not be permitted to proceed in forma pauperis.

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October 26, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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