United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE
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.
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).
THE REPORT AND RECOMMENDATION
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 as follows:
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).
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).
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.)
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 ...