Taylor v. Warden Marion Correctional Institution

Filing 5

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealabi lity 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 10/3/2016. Signed by Magistrate Judge Michael R. Merz on 9/16/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GUDONAVON TAYLOR,
Petitioner,

:

- vs -

Case No. 3:16-cv-398
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

JIM BUNTING, WARDEN,
Marion Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

With the assistance of counsel, Petitioner Gudonavon Taylor invoked federal habeas
corpus jurisdiction under 28 U.S.C. § 2241. He initially filed in the United States District Court
for the Northern District of Ohio at Toledo and Judge Lioi transferred it to this District under 28
U.S.C. § 2241(d) because Petitioner was convicted in the Montgomery County Common Pleas
Court (ECF No. 3). Upon transfer the case was assigned to District Judge Rose and referred to
the undersigned by operation of the Dayton General Order of Assignment and Reference (Day
13-01).
Because Mr. Taylor is in custody pursuant to judgment of a state court, these proceedings
are governed by 28 U.S.C. § 2254 and the Rules Governing § 2254 Cases. Rule 4 of those Rules
provides in pertinent part: “[i]f it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner.”

Taylor pleads two grounds for relief:
Ground One: The trial court abused its discretion and violated
petitioner[‘s] Due Process Rights to a fair and impartial trial and
right to present evidence on his behalf at trial as guanranteed [sic]
by the 5th, 6th, and 14th Amendments to the United States
Constitution when it did not allow the petitioner to try on state
exhibit 46.
Ground Two: The trial court violated petitioner[‘s] Fifth and
Fourteenth Constitutional Amendment Rights when the court
sentenced him to multiple consecutive sentences for a single
course of conduct.
Supporting Facts: The alleged felonious assault was not
committed separately from the murder.

(Petition, ECF No. 1.)
Procedural History

Taylor was indicted by the Montgomery County grand jury on three counts of murder,
two counts of felonious assault, and one count of having weapons while under disability, each
with a three-year firearm specification. On April 18, 2008, Taylor was charged by indictment
with an additional charge of discharging a firearm on or near prohibited premises, with a threeyear firearm specification. State v. Taylor, 2013 Ohio 186, ¶ 2, 2013 Ohio App. LEXIS 135 (2nd
Dist. Jan. 25, 2013)(“State v. Taylor I”). A trial jury convicted him of three counts of murder,
two counts of felonious assault, and firearms discharge offense, all with firearm specifications,
and the trial judge convicted him on the weapons under disability charge and sentenced him to
imprisonment for forty-one years to life. Id. at ¶ 5. He appealed to the Second District which
affirmed the conviction. Id. at ¶ 60. The Ohio Supreme Court declined jurisdiction over an

appeal. State v. Taylor, 135 Ohio St. 3d 1459 (2013). The Second District granted a motion to
reopen under Ohio R. App. P. 26(B), but then reaffirmed the conviction. State v. Taylor, 2014Ohio-3647, 2014 Ohio App. LEXIS 3586 (2nd Dist. Aug. 22, 2014)(“State v. Taylor II”),
appellate jurisdiction declined, 141 Ohio St. 3d 1490 (2015).
Mr. Taylor also reports that he filed a state petition for writ of habeas corpus under Ohio
Revised Code § 2725.01, et seq., on March 14, 2016, in the Ohio Twelfth District Court of
Appeals, raising the same claims he makes here (Petition, ECF No. 1-1, PageID 12, ¶ 11). That
petition was reportedly dismissed May 19, 2016, and Taylor did not appeal to the Ohio Supreme
Court. Id. at PageID 15, ¶ 12(d)(4). Taylor then filed the instant Petition

Analysis

Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions.

In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

Ground One: Asserted Exclusion of Evidence

In his First Ground for Relief, Mr. Taylor asserts abuse of discretion and denial of federal
constitutional rights when the trial judge did not allow him to try on in front of the jury State’s
exhibit 46, a coat connected with identifying the offender in this case.
This Court cannot review the state courts’ decision on the abuse of discretion question
because abuse of discretion is not a denial of due process Sinistaj v. Burt, 66 F.3d 804 (6th Cir.
1995).
Regarding State’s exhibit 46, the Second District found the following facts from record:
[*P36] Taylor stated that when he was taken to the Safety
Building for questioning, he denied using the nickname DonDon
because he was afraid that "it had to be some type of secret
indictment for selling dope," since "that's what all the crackheads
call me." Taylor stated that from 2007 until the present, he has
remained the same size. Taylor denied talking to Wright about his
case. When shown Exhibit 46, the jacket, Taylor denied that it
belonged to him. Defense counsel asked Taylor to try on the parka,
and the following exchange occurred at sidebar:
MR. BRANDT: I'll object, Your Honor, for the record. First, as to
relevance. We're talking about almost three years after the fact.
***
MR. BRANDT: And I don't know what relevance it would be
whether it fits him now versus if it fit him back in 2007.
MR. SKELTON: Your Honor, the relevance is the entire case to
some extent is based on the appearance of this coat on the

Defendant. They could argue on cross-examination anything they
want, but I think the rules will allow this specific type of evidence
to come in.
***
MR. BRANDT: He stated that it's not his coat. * * *He was a
juvenile then. He's now technically an adult. I just don't understand
the relevance it has whether the coat fits him here today when he
says it wasn't his.
MR. SKELTON: Okay. Well, Your Honor, I've already had
him testify that he was approximately the same height and weight
as when he came in. They can cross on that. There's testimony all
over this record about the length of the coat.
***
MR. SKELTON: It's clearly probative.
***
THE COURT: * * *Let me ask this. Has the State had any
thoughts about what rebuttal might be required should the
Defendant try it on or rebuttal evidence, I mean?
MR. BRANDT: You know, I guess the potential slippery slope of
evidence in terms of witnesses coming in to testify as to what his
physical stature was back three years ago.
MR. SKELTON: We have jail records for that if you want.
MR. BRANDT: Jail records, you know, there's an issue of whether
that's self-reporting or anything else. I'm talking about actual
witnesses. So I didn't anticipate, quite honestly, that the Court
would allow him to try it on, so.
THE COURT: I'm going to take a break and figure it out.
***
THE COURT: Ladies and gentlemen, the Court has determined
that due to the age of the Defendant at the time of the shooting and
the potential that the size of the Defendant can change in two
years. Mine has, for example, although not in the same direction as

we're concerned about. We're not going to allow the Defendant's
last request.

[*P37] Defense counsel then requested and received permission
to videotape Taylor trying on the coat outside of the presence of
the jury for purposes of appeal.
[*P38] On cross-examination, Taylor testified that Brown worked
as a "runner" for him and Bryson. Taylor stated that when the
officers approached him on December 11, 2007, near the scene of
the shooting, he "was thinking it was for truancy." Taylor stated
that the officers asked him if his name was DonDon before they
told him that they wanted to interview him about the shooting, and
he stated that he lied to get out of trouble for a drug-related
offense.
[*P39] The prosecutor asked Taylor if he had grown in the last
three years, and Taylor stated that he has been "5'11 3/4"" since he
was 16 years old. Defense counsel then asked the court again at
sidebar to allow Taylor to try on the coat, and the court declined
the request.
[*P40] After the defense rested, Detective Daborde testified on
rebuttal that in the course of an interview with Walder, she
identified the coat taken from Taylor's mother as Taylor's coat.
[*P41] Immediately before closing statements, the court indicated
that upon further review of the issue, it would permit Taylor to try
on the parka in the presence of the jury. Counsel for Taylor stated,
in part, that the defense is not "going to try to reopen their case and
put something into evidence that the Court has already instructed
the Jury that they shouldn't consider. * * * ."
State v. Taylor I.
Taylor presented his claim regarding State’s exhibit 46 as his second assignment of error
on direct appeal and the Second District decided it as follows:
[*P51] Taylor's second assigned error is as follows:
"TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID
NOT ALLOW THE DEFENDANT TO TRY ON STATE
EXHIBIT 46 WHICH RESULTED IN A DENIAL OF A FAIR
TRIAL."

[*P52] We agree with Taylor that the trial court's editorial
comments that it "determined that due to the age of the Defendant
at the time of the shooting and the potential that the size of the
Defendant can change in two years. Mine has, for example,
although not in the same direction as we're concerned about," was
improper. The trial court, however, reconsidered its ruling prior to
closing statements, and Taylor was given and refused the
opportunity to try on the jacket in the presence of the jury. Taylor
accordingly waived his argument that the trial court abused its
discretion when it denied his request to try on the coat. Finally, we
have viewed the video of Taylor trying on Exhibit 46, and the fit of
the jacket is as Tamlyn described and as the State represents.
Taylor's second assigned error is overruled.
State v. Taylor I.
To prevail on his First Ground for Relief, Taylor must demonstrate that the Second
District’s decision of this issue is contrary to or an objectively unreasonable application of
holdings of the United States Supreme Court.

He has not done so.

In his counsel’s

memorandum in support of the Petition, he cites only Ohio case law and all of it on the general
proposition that a trial judge should not express an opinion on the evidence (ECF No. 1, PageID
3-5). That notion is so widely shared that the first case relied on by Petitioner, State ex rel Wise
v. Chand, 21 Ohio St. 2d 113 (1970), relies not on any constitutional decisions of the Supreme
Court, but on 98 Corpus Juris Secundum 60, Witnesses,§ 347.
In the second case, State v. Nutter, 22 Ohio St. 2d 116 (1970), the Ohio Supreme Court
reversed a conviction for having sex with an insane person even though the trial judge had
usurped the jury’s role by instructing it that he had found the victim to be insane. The opinion by
Justice Robert Duncan, later a District Judge of this Court, did not cite any Supreme Court
precedent, but rather Ohio Revised Code § 2945.04, which embodies the constitutional principle
requiring proof of every element of a crime to the jury beyond a reasonable doubt. The trial
judge in Taylor’s case did not take an element of the crime from the jury.

In State v. Sutton, 7 Ohio App. 2d 178 (1st Dist. 1966), Petitioner’s third citation, the
court upheld a trial judge’s authority to comment on the evidence so long as he or she did not go
so far as to tell the jury that only one inference can properly be drawn from the evidence. Again,
no federal constitutional authority is relied on.
State v. Wade, 53 Ohio St. 2d 182 (1978), is Petitioner’s fourth precedent. In that capital
case the Ohio Supreme Court set forth general principles for deciding whether a trial judge’s
comments are prejudicial, but cited no constitutional authority and affirmed the conviction.
The Second District, of course, agreed on Taylor’s general point and held that it had been
error for the trial judge to express an opinion, which he did in the course of his first ruling on the
relevance of the jury’s viewing Taylor in the coat. But it found he had waived any error by
refusing the trial judge’s offer to correct the error. It is this ruling that Taylor must show is
contrary to Supreme Court precedent.
The federal courts have been very supportive of the contemporaneous objection rule
which requires parties to bring trial court errors to the trial judge’s attention so that they can be
corrected. That rule has consistently been held to be an adequate and independent state ground
of decision, raising a procedural barrier to habeas corpus relief when no objection is made.
Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d
662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v.
Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007);
Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir.
2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854
(6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker,
224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith

v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 131 S. Ct. 185 (2010). The principle that
a trial judge should be allowed to correct an error brought to his or her attention is a necessary
corollary of the contemporary objection rule.
Petitioner’s position, however, is that the judge’s change of mind came too late and the
jury had already been “tainted” and trying the coat on at the time the judge changed his mind
“would not have had the same effect. . . .” (ECF No. 1, PageID 5.) If he truly believed the jury
had been tainted beyond repair, Taylor’s proper remedy was to move for a mistrial, which he did
not do. Taylor also presents no Supreme Court precedent for the proposition that failure to move
for a mistrial under those circumstances does not constitutionally constitute a waiver of the jury
taint claim.
In sum, Taylor has not shown that the Second District’s decision on this issue is contrary
to or an objectively unreasonable application of United States Supreme Court precedent. The
First Ground for Relief should be dismissed.

Ground Two: Failure to Merge Murder and Felonious Assault Convictions

In his Second Ground for Relief, Mr. Taylor asserts the trial court violated his “Fifth and
Fourteenth Constitutional Amendment Rights when the court sentenced him to multiple
consecutive sentences for a single course of conduct.”
Taylor raised this claim in his reopened direct appeal as his First Assignment of Error and
the Second District decided it as follows:
[*P6]

Taylor's first assignment of error is as follows:

[*P7] "THE TRIAL COURT ERRED IN IMPOSING A
SENTENCE SEPARATELY FOR ALLIED OFFENSES."

[*P8] In his first assignment, Taylor contends that the trial court
erred when it failed to merge his convictions for felonious assault
and murder. Specifically, Taylor points out that there was only one
victim in this case, and he asserts that the felonious assault was not
committed separately from the murder. Rather, Taylor argues that
both offenses were committed as a single course of conduct with a
single animus.
[*P9] The merger of offenses is governed by R.C. 2941.25,
which is a "prophylactic statute that protects a criminal defendant's
rights under the Double Jeopardy Clauses of the United States and
Ohio Constitutions." State v. Johnson, 128 Ohio St.3d 153, 2010Ohio-6314, 942 N.E.2d 1061, ¶ 45. R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed separately
or with a separate animus as to each, the indictment or information
may contain counts for all such offenses, and the defendant may be
convicted of all of them.
[*P10] The defendant bears the burden to prove entitlement to
merger. State v. Thomas, 10th Dist. Franklin No. 10AP-557, 2011Ohio-1191, ¶ 16.
[*P11] In Johnson, the Supreme Court of Ohio announced a new
manner of applying R.C. 2941.25 to determine when offenses are
allied offenses of similar import that must be merged. It abandoned
the previous test, set forth in State v. Rance, 85 Ohio St.3d 632,
1999 Ohio 291, 710 N.E.2d 699 (1999), which called for a
comparison of the statutory elements solely in the abstract.
Johnson held that, when determining whether two offenses are
allied offenses of similar import subject to merger under R.C.
2941.25, the conduct of the accused must be considered. Id. at ¶
44. The Supreme Court explained:
In determining whether offenses are allied offenses of
similar import under R.C. 2941.25(A), the question is
whether it is possible to commit one offense and commit
the other with the same conduct, not whether it is possible

to commit one without committing the other. State v.
Blankenship (1988), 38 Ohio St.3d 116, 119, 526 N.E.2d
816. (Whiteside, J. , concurring) ("It is not necessary
that both crimes are always committed by the same
conduct but, rather, it is sufficient if both offenses can be
committed by the same conduct. It is a matter of
possibility, rather than certainty, that the same conduct
will constitute commission of both offenses." [Emphasis
sic] ). If the offenses correspond to such a degree that the
conduct of the defendant constituting commission of one
offense constitutes commission of the other, then the
offenses are of similar import.
If the multiple offenses can be committed by the same
conduct, then the court must determine whether the
offenses were committed by the same conduct, i.e., "a
single act, committed with a single state of mind." State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶ 50, 895
N.E.2d 149 (Lanzinger, J. , dissenting).
If the answer to both questions is yes, then the offenses
are allied offenses of similar import and will be merged.
Conversely, if the court determines that the commission
of one offense will never result in the commission of the
other, or if the offenses are committed separately, or if the
defendant has separate animus for each offense, then,
according to R .C. 2941.25(B), the offenses will not
merge.
Johnson at ¶ 48-51.
[*P12] In the instant case, Taylor argues that his offenses should
have merged because his actions in committing the felonious
assault and the murder were committed with a single animus
against only one victim. The facts before us support the trial court's
determination that the felonious assault and the murder of Bryson
were not subject to merger. We recognize that a defendant's
infliction of multiple wounds in rapid succession may constitute a
single act with a single animus for purposes of an allied-offense
analysis. See, e.g., State v. McClendon, 2d Dist. Montgomery No.
23558, 2011-Ohio-5067 (involving a defendant who shot the
victim five times in rapid succession). However, in State v. Rainer,
2d Dist. Montgomery No. 25091, 2013-Ohio-963, we found that
the trial court correctly distinguished between the initial knife
blows that the appellant inflicted inside the bar and the final blow

he inflicted to the victim's back when she fled the bar area and
attempted to escape. The temporal separation between the knife
blows, albeit slight, establishes separate acts of felonious assault.
This court reached a similar conclusion in State v. Wilson, 2d Dist.
Montgomery No. 22120, 2008-Ohio-4130, reasoning:
The evidence in this case demonstrates that Defendant
committed two separate and distinct felonious assaults
against D'Laquan Phillips, and then murdered him. The
initial felonious assault occurred when Michael Phillips
heard a gunshot and looked up to see his nephew,
D'Laquan Phillips, struggling with Defendant. Although it
is unclear from the record whether this first shot struck
D'Laquan Phillips, this conduct corresponds to count four
of the indictment which charged that Defendant caused or
attempted to cause physical harm with a deadly weapon.
This first felonious assault was completed before
Defendant committed the second felonious assault, which
occurred when Defendant shot D'Laquan Phillips in the
back as Phillips attempted to flee. This shot struck and
incapacitated him. The coroner testified that after being
shot in the back, D'Laquan Phillips was paralyzed from
the chest down. This conduct corresponds to count three
which charged that Defendant caused serious physical
harm. This second felonious assault was completed before
Defendant stood over D'Laquan Phillips and shot him
multiple times in the head, purposely causing his death.
Under these circumstances, we conclude that the
felonious assaults were committed separately from and
prior to the purposeful murder, and therefore Defendant
may be convicted and sentenced for all of those offenses.
Id. at ¶¶43-44.
[*P13] Upon review, we conclude that the evidence adduced at
trial established that Taylor committed a separate and distinct
felonious assault against Bryson and then murdered him.
Specifically, there were two separate shootings in two separate
locations. The first shooting occurred at the intersection of Lincoln
and Warren Streets, just outside of Tamlyn's house. After the first
round of gunshots, during which he was struck several times,
Bryson was able to get up and walk diagonally across the street to
238 Warren Street where he fell down. At that point, Taylor
walked over to where Bryson had fallen and shot him several more
times at almost point blank range in the head and upper torso.

Bryson subsequently died where he had fallen in front of 238
Warren Street. While the evidence established that Bryson was
shot fourteen times, the testimony provided by the coroner, Dr.
Allen, established that the shots that killed Bryson were the ones
fired by Taylor in front of the 238 Warren Street address. Similar
to our findings in Wilson, the evidence in the instant case
establishes that the felonious assault occurred and was completed
during the first non-fatal round of gunshots in front of Tamlyn's
residence located at 116 East Lincoln Street. From there, Bryson
was able to get up and walk over to 238 Warren Street where he
fell down and the second round of gunshots was initiated by Taylor
that ultimately brought about Bryson's death. Under these
circumstances, we conclude that the felonious assault was
committed separately from and prior to the murder, and therefore,
Taylor was properly convicted and sentenced for both of those
offenses. Accordingly, the trial court did not err when it refused to
merge Taylor's separate convictions for felonious assault and
murder.
[*P14] Taylor's first assignment of error is overruled.
State v. Taylor II.
In arguing this Second Ground for Relief, Taylor again cites no federal constitutional
precedent, but relies entirely on Ohio precedent, State v. Johnson, 128 Ohio St. 3d 153 (2010),
and State v. Brown, 119 Ohio St. 3d 447 (2008). The relevant constitutional provision is the
Double Jeopardy Clause of the Fifth Amendment, made applicable to the States by. the
Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). That Clause of the Fifth
Amendment to the United States Constitution affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.

Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969).
Although Ohio Revised Code § 2941.25, Ohio’s allied offense statute, is “a prophylactic
statute that protects a criminal defendant’s rights under the Double Jeopardy Clause. . .”
(Johnson, supra, quoted in Taylor II at ¶ 9), the concepts and analysis are not identical.
The test for whether two offenses constitute the same offense for Double Jeopardy purposes
is “whether each offense contains an element not contained in the other.” United States v. Dixon,
509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S. 299, 304 (1932). Where two
offenses are the same for Blockburger purposes, multiple punishments can be imposed if the
legislature clearly intended to do so. Albernaz v. United States, 450 U.S. 333, 344 (1981);
Missouri v. Hunter, 459 U.S. 359, 366 (1983); Ohio v. Johnson, 467 U.S. 493, 499 (1984); and
Garrett v. United States, 471 U.S. 773, 779 (1985); White v. Howes, 586 F.3d 1025, 1035 (6th
Cir. 2009)(“The current jurisprudence allows for multiple punishment for the same offense
provided the legislature has clearly indicated its intent to so provide, and recognizes no exception
for necessarily included, or overlapping offenses.”) The Blockburger test is a rule of statutory
construction, not a constitutional test in itself. Volpe v. Trim, 708 F.3d 688 (6th Cir. 2013),
citing Albernaz. “When assessing the intent of a state legislature, a federal court is bound by a
state court’s construction of that state’s own statutes.” Volpe, citing Banner v. Davis, 886 F.2d
777, 780 (6th Cir. 1989).
“What determines whether the constitutional prohibition against multiple punishments
has been violated is the state legislature’s intent concerning punishment. Specifically, ‘[w]ith
respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing greater punishment than the legislature

14

intended.’” Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S.
359, 366 (1983).
In his memorandum in support, Petitioner does not quarrel with the Second District’s
findings of fact from the trial court record, to wit, that the first shooting occurred at the
intersection of Lincoln and Warren Streets and the second shooting in front of 238 Warren Street
and that the coroner’s testimony was that the second set of shots were fatal. State v. Taylor II at
¶ 13. The Second District concluded that under those circumstances the General Assembly
intended separate punishments. This Court is bound by that interpretation of Ohio Revised Code
§ 2941.25 and it is conclusive of the Double Jeopardy argument. Jackson, supra.
Taylor’s Second Ground for Relief, construed as made under the Double Jeopardy
Clause, is without merit and should be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein 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.

September 16, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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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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