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Brown v. Larose

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

March 26, 2018

Marqus Leon Brown, Petitioner
v.
Christopher LaRose, Respondent

          MEMORANDUM OPINION

          JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE.

         Before me is the March 22, 2016 Report and Recommendation of Magistrate Judge Nancy A. Vecchiarelli, recommending denial of Petitioner Marqus Leon Brown's action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 24). Also before me are the Petitioner's objections. (Doc. No. 27). For the reasons stated below, I adopt the Magistrate Judge's recommendations as set forth in the Report and Recommendation.

         I. Applicable Legal Standard

         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). “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[2][a] (3d 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).

         II. Report and Recommendation

         Magistrate Judge Vecchiarelli's Report initially set forth the background as contained in the state court appellate opinion. She then detailed the state court proceedings and filings in this Court. As there are no objections to this portion of the Report, it is incorporated and adopted as set forth.

         Contained in that recitation of the background are the grounds for relief in the petition and amended petition as follows:

I. There was insufficient evidence to sustain the convictions.
Supporting Facts: The accused did not match the description of the assailant, (assailant said to have short curly hair), the accused is bald. The DNA evidence came from a beer bottle outside the residence in the same apartment complex where the accused lived. Semen found on the bedding was not the accused, and other DNA evidence was inconclusive.
II. Prejudicial prosecutorial misconduct prohibited the Defendant from receiving a fair trial in violation of the 5th, 6th, & 14th Amendments.
III. The trail [sic] courts [sic] improper jury instruction denied the Defendant a fair trial in violation of the 5th, 6th, & 14th Amendments.
Supporting Facts: The state court instructed the facts upon which an expert witness's opinion was based need only to prove by a “greater weight of the evidence.” This lowered the burden of proof to something less that [sic] beyond a reasonable doubt.
IV. When a defendant is sentenced contrary to law due to multiple errors at sentencing, does this result in a deprivation of due process and double jeopardy in violation of the Ohio and U.S. Constitutions?
V. When an appellant files a praecipe and docketing statement to provide the reviewing court with a copy of the transcript for the appeal, and the clerk fails to do so, and the appellate court denies hearing the issue for the appellant failing to file a transcript with the court, does this violate due ...

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