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Webster v. Warden, Mansfield Correctional Institution

United States District Court, S.D. Ohio, Western Division

April 6, 2017

TYRELLE WEBSTER, Petitioner,
v.
WARDEN, MANSFIELD CORRECTIONAL INSTITUTION, Respondent.

          DLOTT, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate in state custody at the Mansfield Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 8). This matter is before the Court on respondent's motion to dismiss (Doc. 13), to which petitioner has not responded.

         I. PROCEDURAL HISTORY

         State Trial Proceedings and Direct Appeal

         On April 13. 2012, the Hamilton County, Ohio, grand jury returned a three-count indictment charging petitioner with two counts of murder and one count of having weapons while under disability. (See Doc. 12, Ex. 1). On July 11, 2013, petitioner's first jury trial ended with the trial court granting petitioner's motion for a mistrial. (Doc. 12, Ex. 4). Petitioner was retried and was found guilty of all counts charged in the indictment. (See Doc. 12, Ex. 5). On November 1, 2013, petitioner was sentenced to a total aggregate prison sentence of eighteen years to life in the Ohio Department of Corrections. (Id. at PagelD 132).

         On October 18, 2013, petitioner, through new counsel, filed a timely notice of appeal. (See Doc. 12, Ex. 6). Petitioner raised the following three assignments of error:

FIRST ASSIGNMENT OF ERROR: The trial court erred to the substantial prejudice of Defendant-Appellant by not dismissing his charges after the State deliberately induced a mistrial, thereby placing him twice in jeopardy in violation of both his federal and state constitutional rights (T.p. 615-616).
Issues for Review and Argument: Does jeopardy attach after the prosecutor causes a mistrial by refusing to provide a missing discovery item?
SECOND ASSIGNMENT OF ERROR: The trial court abused its discretion by refusing to give a jury instruction warranted by the evidence (T.p. 1912).
Issues for Review and Argument: Did the trial court abuse its discretion when it refused to give a Jury instruction on voluntary manslaughter as an alternative to felony murder?
THIRD ASSIGNMENT OF ERROR: The trial court erred to the substantial prejudice of Defendant-Appellant when it entered a conviction that was against the manifest weight of the evidence, thereby denying him due process under the federal and state constitutions (T.d. (sic) 152, T.p. 2055, 2060).
Issues for Review and Argument: Are convictions for murder and its specifications, as well as having weapons while under disability, against the manifest weight of the evidence where the accused presents an alternative version of the facts?

(Doc. 12, Ex. 7). On December 24, 2014, the Ohio appeals court overruled petitioner's assignments of error and affirmed the judgment of the trial court. See State v. Webster, Case No. C-130700, 2014 ...


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