United States District Court, S.D. Ohio, Eastern Division
C. SMITH JUDGE
ORDER AND REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a state prisoner, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. As an initial
matter, Petitioner filed a motion to proceed in forma
pauperis but paid the filing fee. (See Docket,
Doc. 2). Consequently, that motion is DENIED as moot.
matter is also before the Court on its own motion to consider
the sufficiency of the petition pursuant to rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons that follow, the Magistrate
Judge ORDERS Respondent to show cause as to claim one, and
RECOMMENDS that claim two be DISMISSED.
ONE (Ineffective Assistance of Counsel)
Respondent is DIRECTED to file an answer in response to claim
one of the Petition that conforms with the requirements of
Rule 5 of the Rules Governing Section 2254 Cases within SIXTY
(60) days of the date of the filing of this Order.
Specifically, said answer shall respond to the allegations in
claim one, raise any affirmative defense relied on by
Respondent, and state whether, from Respondent's
perspective, claim one is barred by a failure to exhaust
state remedies, a procedural bar, non-retroactivity, or a
statute of limitations.
filing the answer, the Respondent shall file those portions
of the state court record needed to adjudicate this case.
When the record is filed electronically, the Court's
CM/ECF filing system will affix a unique PageID number to
each page of the record, displayed in the upper right-hand
corner of the page. All papers filed in the case thereafter
by either party shall include record references to the PageID
number. Prior to filing the state court record, the
Warden's counsel shall ensure that any borders on parts
of the record (typically, court reporter transcripts) do not
obscure the PageID number when the page is filed. The record
shall be indexed by insertion of “bookmarks” in
the .pdf version of the state court record uploaded to the
Court's CM/ECF system, which display each exhibit and the
name of that exhibit in the record.
required by Fed.R.Civ.P. 5, a complete copy of the answer and
state court record with the PageID numbers must be served on
Petitioner at the time of filing.
may, not later than TWENTY-ONE (21 DAYS) after the answer is
filed, file and serve a Traverse to the answer.
Clerk is DIRECTED to serve the Petition on Respondent and the
Attorney General of Ohio, Habeas Corpus Unit of the
Corrections Litigation Section c/o
CLAIM TWO (Manifest Weight of the Evidence)
and Procedural History
challenges his December 2014 convictions after a jury trial
in the Franklin county Court of Common Pleas on aggravated
murder, aggravated robbery, and kidnapping. He is currently
serving a sentence of life in prison without the possibility
of parole. On March 31, 2016, the Ohio Tenth District Court
of Appeals affirmed the judgment of the trial court.
State v. Hawkins, No. 15AP-35, 2016 WL 1286942 (Ohio
Ct. App. 2016). On July 27, 2017, the Ohio Supreme Court
declined to accept jurisdiction of the appeal. State v.
Hawkins, 146 Ohio St.3d 1473 (Ohio 2016). On May 30,
2017, Petitioner filed the instant ...