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Taylor v. Buchanan

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

July 24, 2018

DARRYL TAYLOR, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.

          Michael R. Barrett District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 19) to the Magistrate Judge's Report and Recommendations recommending dismissal (ECF No. 10). Judge Barrett has recommitted the case for reconsideration in light of the Objections (Recommittal Order, ECF No. 20).

         The Petition pleads five grounds for relief:

GROUND 1: Petitioner's motion to suppress evidence in his case should have been granted because of the lack of a proper search warrant due to the insufficient probable cause and sufficiency of the affidavit, thus, violating his Fourth Amendment of the United States Constitution and Article 1, Section 14 of the Ohio Constitution.
GROUND 2: The admission of evidence alleged to confirm the first controlled buy of drugs violated the petitioner's right against unreasonable search and seizure under the Fourth Amendment of the United States Constitution and Article 1, Section 14 of the Ohio Constitution.
GROUND 3: The evidence presented at trial is insufficient to support petitioner's conviction for drug trafficking, which conviction is manifestly against the weight of the evidence, and the defense of entrapment is established, thus, acquittal is appropriate.
GROUND 4: The petitioner was denied effective assistance of appellate counsel when he failed to raise petitioner's constitutional right to have the assistance of counsel for his defense.
GROUND 5: The petitioner was denied effective assistance of appellate counsel when he failed to raise petitioner's constitutional right to raise petitioner's constitutional right to a fair trial by impartial, indifferent jurors.

(Petition, ECF No. 1, Page ID 4, 6, 11, 16 and 20.)

         Grounds One and Two: Violations of the Fourth Amendment

         The Report recommended that Grounds One and Two, which allege violations of the Fourth Amendment, should be dismissed under the doctrine of Stone v. Powell, 428 U.S. 465 (1976).

         Taylor begins his Objections by asserting that procedural default was raised as a defense to his presentation of his Fourth Amendment claims. That is correct. In the Return of Writ Respondent pointed out that because Taylor “did not challenge in the state court the legality of the warrant and accompanying affidavit executed for the purposes of searching Taylor's home (or an affidavit attached to the complaint) this claim is procedurally defaulted.” (Return, ECF No. 7, PageID 501.)

         The Report does not discuss the procedural default defense as to Grounds One and Two, but decided these claims on the basis of Stone v. Powell, supra (Report, ECF No. 10, PageID 526). It is not necessary for the Court to consider the ...


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