United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE.
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.
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 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).
Report and Recommendation
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.
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
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
III. The trail [sic] courts [sic] improper
jury instruction denied the Defendant a fair trial in
violation of the 5th, 6th, &
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 ...