The opinion of the court was delivered by: Norah McCann King United States Magistrate Judge
ORDER and REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's request for a stay, respondent's opposition to that request, petitioner's reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the instant action be DISMISSED. Petitioner's request for a stay, Doc. No. 14, is DENIED.
The Ohio Tenth District Court of Appeals summarized the facts of this case as follows:
On January 14, 2005, Sharon Montgomery held a party. Appellant attended the party, as did Sheila Montgomery, the deceased victim and sister of Sharon. Appellant and Sheila had been dating for approximately one year and had known each other for approximately three years. At approximately 11:30 p.m., Sheila and appellant left the party with MaryAnn Benton, Sheila's first cousin, and Benton's husband. Benton and her husband dropped off Sheila and appellant at appellant's house.
The next day, January 15, 2005, Benton visited with appellant and Sheila at appellant's house at approximately 2:00 p.m. Appellant paid Benton $20 for some jewelry she sold him, and she saw a gun with a "cylinder" in a drawer when he retrieved the money. Also on that day, Sheila stopped by Sharon's home for 20 minutes and then left. Later, on January 15, 2005, at about 6:00 p.m., Benton returned to appellant's house. Appellant arrived at the door and told Benton that Sheila had left, he was sleeping, and he did not want any company. Benton returned to appellant's house around 2:00 p.m. on January 16, 2005. Appellant was on his porch and told her he was not feeling well, and she left.
In the early evening on January 16, 2005, Earl Benner was in an alley on the same block as appellant's house looking for discarded antiques when he noticed what appeared to be a body under a trashcan. Benner contacted the police, who discovered the body was that of Sheila, and she had been shot in the upper chest.
On January 17, 2005, Benton went to appellant's house at about 1:00 p.m., and she and appellant drank alcohol together but did not discuss Sheila. Benton left but returned to appellant's house around 6:00 p.m., at which time appellant told Benton that the police had found Sheila dead and told her to tell her family that he did not kill her. He told her that the detectives had been to his house and they would probably arrest him for her murder.
During a canvas of the neighborhood where Sheila's body had been found, appellant told detectives that he had seen Sheila "around" but did not know her name or how to contact her family. He told detectives that he had had sex with Sheila on January 13, 2005. During an interview on January 20, 2005, appellant admitted to the police that he knew Sheila and her family but that Benton was trying to frame him for her murder. He claimed Sheila had stolen some things from him.
After police questioned several other witnesses in the neighborhood and executed a search warrant on appellant's house, on April 20, 2005, appellant was indicted on one count of aggravated murder, with specification, and one count of tampering with evidence. Prior to trial, the aggravated murder count was amended to the lesser-included offense of murder, with specification. On October 17, 2005, a trial was held, and the jury subsequently rendered a verdict finding appellant guilty of murder, with specification, and tampering with evidence. On October 27, 2005, the trial court issued a judgment finding appellant guilty of the charges as found by the jury and sentencing appellant to incarceration of 15 years to life on the murder charge consecutive to a three-year term for the specification charge, and five years on the tampering with evidence charge, to be served concurrently to the term for the murder and specification charges.
State v. Thompson, 2006 WL 1826737 (Ohio App. 10th Dist. June 30, 2006). Represented by new counsel, petitioner filed a timely appeal. He asserted the following assignment of error:
THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND WAS NOT SUPPORTED ...