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Phillips v. Turner

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

May 22, 2017

JOHN J. PHILLIPS, Plaintiff,
v.
NEIL TURNER, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DAN AARON POLSTER UNITED STATES DISTRICT JUDGE.

         Before the Court are Petitioner Phillips's Petition under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody (the “Petition”), Doc #: 1, and the Report and Recommendation (the “R & R”) of Magistrate Judge Kathleen B. Burke, Doc #: 12. For the reasons discussed herein, the R & R is adopted in full.

         I. Procedural History

         On April 13, 2016, Phillips filed his Petition pursuant to 28 U.S.C. § 2254. In his Petition, Phillips raised two grounds for relief:

GROUND ONE:
The Appellants conviction is not supported by the record as the evidence at trial was insufficient and against the manifest weight of the evidence in violation of Petitioner's Fourteenth Amendment right of Due Process and United States Supreme Court ruling in Jackson v. Virginia, 443 U.S.. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
GROUND TWO:
The Appellants Sixth and Fourteenth Amendment rights were violated when he was sentenced to maximum consecutive sentences in contravention to Ohio Revised Code § 2929.41(A); and laws under Apprendi v. New Jersev, 120 S.Ct. 2368 and Blakely v. Washington, 124 S.Ct. 2531.

Petition 4, 6.

         The Petition was referred to Magistrate Judge Kathleen B. Burke, who set a briefing schedule for a return of writ, traverse, and reply. Order, Doc #: 3. Ultimately, after a few extensions of time, Warden Turner filed a Return of Writ and Phillips filed a Traverse to Writ, but Turner did not file a reply. Doc ##: 9, 11.

         On April 25, 2017, Magistrate Judge Burke issued her R & R recommending the Court dismiss in part and deny in part the Petition.

         On May 9, 2017, Warder Turner docketed his Objection to the R & R. Doc #: 13.

         On May 15, 2017, Phillips's Objection was docketed. Doc #: 14. Phillips's Objection is undated; the envelope[1] received by the Court was postmarked May 12, 2017. Phillips's attached Certificate of Service states that the Ohio Attorney ...


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