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Middlebrook v. Cook

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

December 5, 2019

TERRANCE MIDDLEBROOK, Petitioner,
v.
BRIAN COOK, Warden Southeastern Correctional Institution, Respondent.

          District Judge Timothy S. Black

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         Petitioner Terrance Middlebrook brought this action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction for felonious assault in the Common Pleas Court of Hamilton County. The case is ripe for consideration on the Petition (ECF No. 1), the State Court Record (ECF No. 25), the Return of Writ (ECF No. 26) and Petitioner's Reply (ECF No. 29).

         The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District but remains assigned to District Judge Black for final disposition.

         Litigation History

         Middlebrook was indicted on one count of felonious assault on February 14, 2014. A trial jury found him guilty and he was sentenced to a term of eight years' imprisonment, consecutive to a one-year term imposed for a community control violation in another case. Middlebrook appealed and the Ohio First District Court of Appeals affirmed, although it remanded for inclusion in the sentencing entry of some findings made orally at a hearing.

         Middlebrook appealed pro se to the Supreme Court of Ohio on July 1, 2015. Although the Supreme Court granted him a delayed appeal, it dismissed his appeal when he failed to file the required jurisdictional memorandum. State v. Middlebrook, 143 Ohio St.3d 1474 (2015). On November 7, 2016, Middlebrook filed a delayed application to reopen his direct appeal under Ohio R. App. P. 26(B) which the First District denied as untimely. A second 26(B) application was also denied as untimely and because Ohio law does not provide for such second applications. He did not appeal to the Supreme Court of Ohio, but filed a third 26(B) application which the First District denied February 2, 2018, because it was untimely, because Ohio law does not provide for such third applications, and because the claims were barred by res judicata. Again Middlebrook did not appeal to the Ohio Supreme Court.

         On June 15, 2018, Middlebrook filed a fourth 26(B) application. The First District dismissed on the basis that Ohio law does not provide for successive applications. This time Middlebrook did appeal to the Ohio Supreme Court, but that court declined to accept jurisdiction.

         Middlebrook initially filed his Petition in this Court on May 5, 2016, then refiled in proper form on July 18, 2016. He pleads three grounds for relief:

Ground One: Absolute Innocence -- She (the victim) attacked me and she was so drunk that she cannot remember the chain of events.
Supporting Facts: All the crime scene blood was mine, but the cops misinterpreted and testified it was the victims [sic]. The alleged victim did not have broken bones nor stitches - nothing was presented during trial that officially proved the alleged victim had received the injuries the state claimed. See previously filed “Verified Petition for Issuance of Writ of Habeas Corpus” for description of events that resulted in the misrepresentation of the evidence.
Ground Two: Ineffective Assistance of Trial Counsel Supporting Facts: Counsel never produced medical records of this Petitioner, nor the medical records that would have refuted the state's claim of the victim's alleged injuries. See previously filed “Verified Petition for Issuance of Writ of Habeas Corpus” for statements concerning events.
Ground Three: Ineffective Assistance of Appellate Counsel Supporting Facts: Failed to raise in any significant manner challenges against the lack of significant or the misrepresentation of the evidence, even relegating this primary issue to the end of the appeal. See statements in ...

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