United States District Court, N.D. Ohio, Eastern Division
JOHN J. PHILLIPS, Plaintiff,
NEIL TURNER, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
AARON POLSTER UNITED STATES DISTRICT JUDGE.
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.
April 13, 2016, Phillips filed his Petition pursuant to 28
U.S.C. § 2254. In his Petition, Phillips raised two
grounds for relief:
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.
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.
Petition 4, 6.
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.
April 25, 2017, Magistrate Judge Burke issued her R & R
recommending the Court dismiss in part and deny in part the
9, 2017, Warder Turner docketed his Objection to the R &
R. Doc #: 13.
15, 2017, Phillips's Objection was docketed. Doc #: 14.
Phillips's Objection is undated; the
envelope received by the Court was postmarked May
12, 2017. Phillips's attached Certificate of Service
states that the Ohio Attorney ...