Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pope v. Coleman

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

May 2, 2018

Kenneth Pope, Jr., Petitioner
v.
John Coleman, Respondent

          MEMORANDUM OPINION

          JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE

         Before me is the February 23, 2016 Report and Recommendation of Magistrate Judge Kathleen B. Burke, recommending denial of Petitioner Kenneth Pope, Jr.'s action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 18). Also before me are the Petitioner's objections. (Doc. No. 19). 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).

         II. THE REPORT AND RECOMMENDATION

         The Magistrate Judge's Report set forth the background of the state court action, the procedural history, including that of the direct appeal and proceedings before the Supreme Court of Ohio. As the Petitioner does not contest the background set out in the Report, it is incorporated by reference into this opinion. The grounds for relief were forth in the Amended Petition[1] as follows:

         GROUNDS FOR RELIEF

9. The State failed to produce sufficient evidence to convict Pope of Murder and the Gun Specifications.
Regarding the Murder conviction, the Ohio Court of Appeals held that there was sufficient evidence to convict Pope of either Murder or Complicity to Murder, but failed to identify or apply the distinct elements for Complicity to Murder to the facts. Had it done so, even construing the record facts to favor the State, there was insufficient evidence that Pope caused the deaths using a gun, and insufficient evidence that he possessed the requisite mens rea for Complicity to Murder.
Regarding the Gun Specifications, the Ohio Court of Appeals failed to state whether Pope was convicted as a principal or complicitor, and failed to address whether Ohio law actually states an offense for complicity to a gun specification. Under Ohio law, a defendant can be complicit for another's offense. But a gun specification is a sentencing enhancement and not an offense. Thus, there was insufficient evidence that Pope used or brandished the gun for principal liability on the record facts; and insufficient evidence for complicity liability because complicity to a gun specification is not an Ohio offense.

(Doc. No. 11 at p. 2).

         In her analysis, the Magistrate Judge considered Petitioner's grounds for relief in reverse order. As to Pope's second ground for relief, the Magistrate Judge concluded this claim was procedurally defaulted because Petitioner did not present his claim in the Ohio courts. Additionally, the Petitioner did not allege or argue cause, prejudice, or manifest injustice to excuse the default. (Doc. No. 18 at p. 13).

         As for Petitioner's first ground for relief, the Magistrate Judge reiterated Pope's argument of “insufficient evidence at trial that he (1) “caused the deaths using a gun” and (2) “possessed the requisite mens rea for Complicity to Murder.” (Id.)

         The Magistrate Judge first determined that a sufficiency of the evidence claim was entitled to a “double layer” of deference in a federal habeas review and addressed those standards. She then discussed the direct appeal and determination of the Ohio Court of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.