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Moore v. Turner

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

April 4, 2018

SAMMY C. MOORE, JR., Petitioner,
v.
NEIL TURNER, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Sammy C. Moore, Jr.'s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1). For the following reasons, the Court accepts and adopts the Magistrate Judge's Report and Recommendation and denies Petitioner's Petition.

         FACTS

         The following is a factual synopsis of Petitioner's claims. The Magistrate Judge's Report and Recommendation, adopted and incorporated, provides a more complete and detailed discussion of the facts.

         On May 5, 2015, Petitioner was charged with one count of Aggravated Robbery. Following a bench trial, the trial court found Petitioner guilty and sentenced him to eight years in prison. Petitioner appealed his sentence to the Court of Appeals on August 7, 2015. On June 17, 2016, the Court of Appeals affirmed the judgment of the trial court. On August 18, 2016, Petitioner filed a Notice of Appeal and a Motion for a Delayed Appeal to the Ohio Supreme Court. On October 26, 2016, the Ohio Supreme Court summarily denied Petitioner's Motion and dismissed the case.

         Petitioner filed the instant Petition on January 9, 2017, asserting the following Grounds for Relief:

GROUND ONE: The Defendant-Appellant[']s United States Constitution Fourteenth Amendment right was violated when the Appellate Court affirmed the Trial Court[']s judgment of conviction and sentence.
GROUND TWO: The Defendant-Appellant[']s United States Constitution Fourteenth Amendment right was violated when the State failed to present sufficient evidence to prove every clement of the crimes charged beyond a reasonable doubt as mandated by the ruling in Jackson v Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

         On January 23, 2017, this Court referred Petitioner's Petition to the Magistrate Judge for a Report and Recommendation. The Magistrate Judge issued her Report and Recommendation on August 16, 2017. Petitioner failed to file a timely objection and on September 7, 2017, the Court adopted the Report and Recommendation and dismissed the case. On September 8, 2017, Petitioner filed an Objection to the Report and Recommendation. On September 25, 2017, Petitioner filed a Motion for Reconsideration and the same Objections to the Report and Recommendation. On March 26, 2018, the Court granted Petitioner's Motion and re-opened the case. The Court notes that Petitioner's grounds for relief were not properly presented to the Ohio Supreme Court and appear to be procedurally defaulted. However, Respondent has waived this argument. Therefore, the Court will address Petitioner's claims on the merits.

         STANDARD OF REVIEW

         When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” Further, a federal court may grant habeas relief if the state court arrives at a decision opposite to that reached by the Supreme Court of the United States on a question of law, or if the state court decides a case differently than did the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of whether or not a state court decision unreasonably applied clearly established federal law is whether that state adjudication was “objectively unreasonable” and not merely erroneous or incorrect. Williams, 529 U.S. at 409-411.

         Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are presumed correct, rebuttable only by clear and convincing evidence to the contrary. McAdoo v. Elo, 365 F.3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules Governing §2254 states:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part ...

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