United States District Court, N.D. Ohio, Western Division
Jeffrey J. Helmick United States District Judge.
March 29, 2013, pro se Petitioner Jeffrey Scott
Phillips filed a petition for a writ of habeas corpus with
this Court pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
Petitioner sought a request for a stay of his petition
pending exhaustion of a post-conviction petition. (Doc. No.
2). The petition was dismissed, without prejudice, pending
Petitioner exhausting his state court remedies. (Doc. No. 4).
August 12, 2014, Petitioner moved to reopen his case and
amend his petition. (Doc. No. 7). Pursuant to my order,
Petitioner's case was reopened and his amended petition
was filed on November 6, 2014. (Doc. No. 10). The matter was
referred to Magistrate Judge Kenneth S. McHargh for a Report
Magistrate Judge issued a thirty-seven page Report and
Recommendation addressing procedural default, cognizable
claims, as well as the merits of the remaining claims. (Doc.
No. 30). The Report recommended denying the petition.
Petitioner filed timely objections to the Report (Doc. No.
35) and the Respondent filed a response thereto. (Doc. No.
36). Also before me is Petitioner's motion for correction
of a clerical error in his objections. (Doc. No. 37). As
there is no opposition to this motion, I grant
Petitioner's motion for correction of an error in his
reasons stated below, I find the objections of the Petitioner
well taken in part and overruled in part. I also adopt the
Magistrate Judge's recommendations in part and overrule
them in part.
Report, Magistrate Judge McHargh set forth a comprehensive
procedural background of this case. (Doc. No. 30 at pp.
4-10). As there are no objections as to that portion of the
Report, I adopt that section in full and incorporate it by
reference into this opinion.
November 2010, Petitioner was convicted of aggravated murder,
aggravated burglary, tampering with evidence, and arson in
the Court of Common Pleas for Stark County, Ohio. His amended
petition contains the following five grounds for relief:
1. Petitioner's constitutional rights were violated when
the petitioner's counsel failed to object to the
introduction of hearsay in the form of an FBI generated cell
tower analysis and report which was received and used by the
investigating agency as a foundation for prejudicial charts
and testimony which was introduced at trial to show the
vicinity of cell phone towers.
2. The trial court violated the petitioner's
constitutional rights when it permitted the introduction of a
letter to an unrelated third party, which included otherwise
inadmissible other acts of evidence.
3. The trial court's decision to allow the introduction
of gruesome crime scene photos and photos of the autopsy were
highly inflammatory and highly prejudicial toward this
4. The jury's verdict is against the sufficiency and
manifest weight of the evidence presented at trial.
5. The trial court abused its discretion in failing to grant
petitioner's motion to vacate fines and costs.
(Doc. No. 30 at p. 2).
Standard of Review
district court must conduct a de novo review of
“any part of the magistrate judge's disposition
that has been properly objected to. The district judge may
accept, reject or modify the recommended disposition, receive
further evidence, or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3);
see also Norman v. Astrue, 694 F.Supp.2d 738, 740
(N.D. Ohio 2010).
Objections and Analysis
first objection centers on the lack of access to the trial
transcripts and the Magistrate Judge's mistaken
perception that Petitioner was in possession of these
after the amended petition was filed, Petitioner moved for a
copy of the trial transcripts to allow him to prepare a
proper response with specific references to the record. (Doc.
No. 12). The Respondent's opposition noted there is no
constitutional right to a free transcript in a collateral
proceeding, adding the Petitioner already received a free
copy of the transcripts at the State's expense. (Doc. No.
16). In support, the Respondent attached a copy of the
request and approval for a copy of the trial transcript for
the Petitioner/Defendant's use in his appeal. (Doc. No.
16-1). The Magistrate Judge denied Petitioner's request
for a copy of the trial transcripts. (Doc. No. 17).
filed a motion for reconsideration of his transcript request
attaching the December 10, 2010 correspondence from his