United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE.
me is the May 13, 2016 Report and Recommendation of
Magistrate Judge George J. Limbert recommending dismissal of
Petitioner Christopher Hoffman's action seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No.
14). Also before me are the pro se Petitioner's
objections. (Doc. No. 17). For the reasons stated below, I
adopt the Magistrate Judge's recommendation as set forth
in the Report and Recommendation.
Applicable Legal Standard
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). “De novo determination requires
‘fresh consideration' of a magistrate judge's
recommendation, independent of the magistrate judge's
conclusions.” 14 Moore's Federal Practice §
72.11[a] (3d ed. 2017). In conducting a de novo review,
the court need not conduct a de novo hearing on the matter.
Lifeng Chen v. New Trend Apparel, Inc., 8 F.Supp.3d
406, 416 (S.D.N.Y. 2014), citing United States v.
Raddatz, 447 U.S. 667, 675-76 (1980).
The Report and Recommendation
Magistrate Judge's report began with a synopsis of the
facts as articulated by the Ninth District Court of Appeals.
State v. Hoffman, No. 26084, 2013 WL 1141033 (Ohio
App. 2013); (Doc. No. 4-1 at pp. 1-10). In summary, on June
12, 2009, the jury found Petitioner not guilty as to
aggravated murder (Count One), guilty of murder (Count
Three), guilty of involuntary manslaughter (Count Five), and
guilty of endangering children (Counts Seven and Nine). (Doc.
Nos. 4-19 and 4-20). The Report then detailed the procedural
history of the state trial court, the direct appeal, and the
Supreme Court of Ohio. (Doc. No. 14 at pp. 5-8).
examining the Petition, the Magistrate Judge set forth four
grounds for relief and then explained that the fourth ground
for relief was severed from this action so the case could proceed
on the first three grounds for relief. (Doc. Nos. 10 and 12).
three grounds for relief are set forth as follows:
GROUND ONE: Where evidence of an unrelated[sic] crime is
admitted in a murder trial and the admission of that evidence
severely prejudices the defendant, the trial court deprived
the Petitioner of due process when it denied the
defendant's motion to sever counts. Depriving him of his
rights gaurenteed[sic] by the U.S. and Ohio Constitions[sic].
Supporting facts: The trial court should have severed the
child endangering charge contained in Count Nine, alleging
that the Petitioner violated a duty of care, protection, or
support at some unrelated prior occasion, from the charges in
Counts One, Three, Five, and Seven, all of which relate to
the events surrounding NH's death. By allowing the State
to try Petitioner on the aggravated murder, felony murder,
involuntary manslaughter, and Count 7 child endangering
charges at the same time as the distinct crime alleged in the
third-degree felony child endangering charge in count 9, the
trial court abused its discretion, considerably prejudiced
Petitioner's defense and denied him a constitutionally
fair trial. The child endangering charge in count 9 alleged
that the Petitioner created “a substantial risk to the
health or safety of the child, by violating a duty of care,
protection, or support, “tending to prove that the rib
injuries were of the same or similar character as the abuse
alleged to have caused N.H.'s death, or that they were
based on the same act or transaction or based on multiple
acts or transactions connected together, nor was there any
evidence that the rib fractures were a part of a criminal
scheme or course of conduct.
GROUND TWO: The trial court violated the Petitioner's
rights to due process and a fair trial when, in the absence
of sufficient evidence, the trial court convicted him of
murder in violation of his fifth, Sixth, and Fourteenth
Amendment rights under the United States Constitution and
Sections 10 and 16, Article I of the Ohio Constitution.
Supporting Facts: The evidence was insufficient to sustain
the Petitioner's conviction for murder. Before the State
may obtain a conviction for any offense, it must prove every
element of that offense beyond a reasonable doubt. A
conviction based upon insufficient evidence must be
overturned. When a verdict regarding a charge is not
supported by sufficient evidence, the reviewing court must
vacate the verdict and dismiss the charge. Child endangering
becomes a second-degree felony upon proof beyond a reasonable
doubt that the defendant recklessly abused a child under the
age of thirteen and the abuse results in serious physical
harm. RC 2919.22(B)(1) and (E)(2)(d). Abuse signifies an act
of violence, and indeed, during its closing argument, the
State told the jury that the Petitioner's actions toward
N.H. on December 10, 2007 were “purposeful, ”
“reckless, ” and “violent.” However,
the demonstrable evidence reveals that the piece of tissue
removed from N.H.'s throat during the autopsy was very
small approximately 2.35 inches by .98 inches by .5 inches.
The evidence further confirms that there was a significant
amount of vomit and drool still in his mouth. The evidence
shows that this was a tragic accident. Accordingly, the
jury's verdict regarding second degree felony endangering
was not supported by sufficient evidence.
GROUND THREE: The Petitioner's conviction was entered
against the manifest weight of the evidence, in violation of
the Fifth and Fourteenth Amendments to the United States
Constitution and Section 16, Article I of the Ohio
Supporting Facts: The jury's verdict finding the
petitioner guilty of felony murder was against the manifest
weight of the evidence. The State did not present any
credible evidence that the Petitioner had any knowledge, or
that he disregarded a known risk, that using a small piece of
tissue to wipe out N.H.'s mouth would be abusive and
result in serious physical harm to N.H. Therefore, the
jury's verdict on the second-degree child endangering
charge was against the manifest weight of the evidence.
Further, since the jury's ...