Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kerr v. Turner

United States District Court, N.D. Ohio, Eastern Division

April 10, 2017

JEREMY KERR, Petitioner,
v.
NEIL TURNER, Respondent.

          MEMORANDUM OF OPINION

          CHRISTOPHER A. BOYKO United States District Judge.

         This matter comes before the Court on Petitioner Jeremy Kerr's Petition under 28 U.S.C. § 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 dismisses in part, and denies in part, 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.

         The Wood County Grand Jury issued an Indictment during its May 2012 term charging Petitioner with four counts of Forgery and four counts of Tampering With Evidence. The case proceeded to trial and the jury found Petitioner guilty as charged. On June 10, 2013, the court sentenced Petitioner to an aggregate sentence of seven years and eights months in prison. Petitioner was also fined $10, 000.00, ordered to make restitution and pay court costs.

         Petitioner filed a Notice of Appeal with the Sixth District Court of Appeals. On December 12, 2014, the Court of Appeals affirmed the judgment of the trial court. On February 11, 2015, Petitioner filed a Motion for Leave for Reconsideration. The Court of Appeals denied Petitioner's Motion for Leave for Reconsideration as untimely. On January 23, 2015, Petitioner filed a Notice of Appeal with the Ohio Supreme Court. On May 20, 2015, the Ohio Supreme Court declined to accept jurisdiction of the Appeal.

         On September 28, 2015, Petitioner filed the instant Petition asserting thirty-one grounds for relief. On October 6, 2015, this Court referred Petitioner's Petition to the Magistrate Judge for a Report and Recommendation. On December 21, 2015, Petitioner filed a Motion for Summary Judgment. The Magistrate Judge issued a Report and Recommendation that the Motion be denied without prejudice to a final disposition of the Petition on full review. The Court adopted the Report and Recommendation on February 29, 2016. The Magistrate Judge issued his Report and Recommendation on the instant Petition on December 29, 2016. On January 25, 2017, Petitioner filed an Opposition to Review and Recommendation.

         STANDARD OF REVIEW

         When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” Further, a federal court may grant habeas relief if the state court arrives at a decision opposite to that reached by the Supreme Court of the United States on a question of law, or if the state court decides a case differently than did the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of whether or not a state court decision unreasonably applied clearly established federal law is whether that state adjudication was “objectively unreasonable” and not merely erroneous or incorrect. Williams, 529 U.S. at 409-411.

         Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are presumed correct, rebuttable only by clear and convincing evidence to the contrary. McAdoo v. Elo, 365 F.3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules Governing §2254 states:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate.

         ANALYSIS

         The Magistrate Judge correctly summarized that there are only three categories of claims that were free from procedural default: issues pertaining to venue, insufficient evidence and manifest weight of the evidence. Grounds Three, Seven, Eleven, Thirteen, Sixteen and Nineteen raise claims of improper venue and/or failure to prove venue and are not procedurally defaulted. These are referred to as the Venue Claims and they are listed as follows:

GROUND THREE: Petitioner was denied his 5th, 6th, 9th, and 14th Amendment to the U.S. Constitution Right to Due Process and Equal Protection of the Law by the Entry of Judgment of Conviction against him in absence of sufficient evidence that Petitioner “uttered” forged Release of Liens in Wood County, Ohio.
GROUND SEVEN: Petitioner was denied his 5th, 6th, 9th, and 14th Amendment to the U.S. Constitution Right to Due Process and Equal Protection of the Law by the Entry of Judgment of Conviction against him absent sufficient evidence that forged Release of Liens were “uttered” in Wood County, Ohio.
GROUND ELEVEN: Petitioner was denied his 5th, 6th, 9th, and 14th Amendment to the U.S. Constitution Right to Due Process and Equal Protection of the Law by the Entry of Judgment of Conviction against him in absence of sufficient evidence the Clerk of Court ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.