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Phillips v. LaRose

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

November 20, 2017

Jeffrey Scott Phillips, Petitioner
Christopher LaRose, Respondent


          Jeffrey J. Helmick United States District Judge.

         I. Introduction

         On 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).

         On 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 and Recommendation.

         The 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 objections.

         For the 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.


         In the 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.

         In 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 petitioner.
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).

         III. Standard of Review

         A 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).

         IV. Objections and Analysis

         A. Transcripts

         The 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 transcripts.

         Shortly 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).

         Petitioner filed a motion for reconsideration of his transcript request attaching the December 10, 2010 correspondence from his ...

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