United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
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.
Trial Proceedings and Direct Appeal
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
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
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
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,
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
(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 ...