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Warman v. Buchanan

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 19, 2019

CHARLES F. WARMAN, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.

          Algenon L. Marbley District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case, brought pro se by Petitioner Charles F. Warman, is before the Court on Petitioner's Objections (ECF No. 18) to the Magistrate Judge's Report and Recommendations recommending dismissal (the “Report, ” ECF No. 15). Judge Marbley has recommitted the case for reconsideration in light of the Objections (ECF No. 19).

         The Report

         Warman pleaded four grounds for relief in his Petition:

         1. Ineffective assistance of trial counsel for failure to impeach the victim with perjured testimony.

         2. Prosecutorial misconduct for knowing use of false testimony.

         3. Ineffective assistance of appellate counsel “by not challenging the appellate court's improper adjudication regarding petitioner's sixth assignment of error.”

         4. Ineffective assistance of trial counsel for failure to object to repeated hearsay testimony by Officer Purtee.

         The Report concluded Grounds One and Two were procedurally defaulted because they were not raised on either direct appeal or in a post-conviction petition (Report, ECF No. 15, PageID 830-41). Ground Three was found to be without merit. Id. at PageID 841-42. On Ground Four the Report recommended deferring to the state court of appeals decision that failure to raise a meritless hearsay objection was not ineffective assistance of trial counsel.

         The Objections

         Warman states he objects to two determinations in the Report:

         1. That it was not proven that any of the evidence presented by the prosecutor was known to be false (ECF No. 18, PageID 853, citing “R. 839” which the Magistrate Judge takes to be PageID 839[1]).

         2. That trial counsel's failure to impeach victim Felicia Warman's inconsistent and false testimony concerning Fairbanks Avenue was not specifically addressed, and that counsel's failure did not constitute an ineffective assistance of counsel. Id., citing PageID 839. Warman ...


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