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Daniels v. Tibbals

United States District Court, Sixth Circuit

June 5, 2013

MALCOLM DANIELS, Petitioner,
v.
TERRY TIBBALS, Warden, Respondent.

MEMORANDUM OF OPINION

CHRISTOPHER A. BOYKO, District Judge.

This matter comes before the Court on Petitioner Malcolm Daniels' Petition under 28 U.S.C. ยง 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1). For the following reasons, the Court accepts and adopts the Magistrate Judge's Report and Recommendation, and denies Petitioner's Petition.

FACTS

The following is a factual synopsis of Petitioner's claims. The Magistrate Judge's Report and Recommendation, adopted and incorporated, provides a more complete and detailed discussion of the facts.

On February 17, 2009, a Cuyahoga County, Ohio grand jury indicted Petitioner on two Aggravated Murder charges with two Firearm Specifications each, two Aggravated Robbery charges with two Firearm Specifications each, and one count of Carrying a Concealed Weapon. The case proceeded to trial. On May 26, 2009, the jury found Petitioner guilty of all indicted charges and Firearm Specifications. On June 4, 2009, the trial court sentenced Petitioner to an aggregate prison term of 28 years to life.

On June 29, 2009, Petitioner timely filed a Notice of Appeal to Ohio's Eighth District Court of Appeals. On August 19, 2010, the Court of Appeals affirmed the judgment of the trial court. On September 16, 2010, Petitioner timely filed a Notice of Appeal in the Ohio Supreme Court. On December 29, 2010, the Ohio Supreme Court denied Petitioner's leave to appeal and dismissed the Appeal as not having any substantial constitutional question.

Petitioner filed the instant Petition on January 3, 2012, asserting the following grounds for relief:

GROUND ONE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN FAILING TO OBJECT TO TESTIMONY REGARDING AS ALLEGED CONFESSION STATEMENT MADE BY PETITIONER AT TRIAL.

Supporting Facts: Trial counsel never filed a motion to the trial court to suppress an alleged confession statement nor did he object to the testimony at trial of the alleged confession.
GROUND TWO: PETITIONER IS DENIED HIS CONSTITUTIONAL RIGHT TO HAVE HIS GUILT PROVEN BEYOND A REASONABLE DOUBT AND HIS RIGHT TO A FAIR TRIAL WHEN THE JURY VERDICTS ARE UNSUPPORTED BY SUFFICIENT EVIDENCE.
Supporting Facts: The states case-in-chief rested on a witness who initially failed to call 911, did not report the shooting until the next day after the victims family forced [him] to, lied about being with the victim, lied about the drug deal, and then recanted [his] earlier statement [he] made to the police.
GROUND THREE: THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INCORRECT, INCOMPLETE AND INSUFFICIENT JURY INSTRUCTIONS.
Supporting Facts: The [P]etitioner's statement made to the police, that a police officer testified to was made to him by the [P]etitioner supported a jury instruction of a lesser included offense or at a minimum a self defense instruction.

On March 1, 2012, this Court referred Petitioner's Petition to the Magistrate Judge for a Report and Recommendation. The Magistrate Judge issued his Report and Recommendation on May 15, 2013. On June 3, 2013, Petitioner sent a letter to the Magistrate Judge in which he states that he objects to the Report ...


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