United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick United States District Judge.
Kyle Murphy seeks a writ of habeas corpus under 28 U.S.C.
§ 2254, concerning his conviction on charges of rape,
attempted rape, and endangering children in the Stark County,
Ohio Court of Common Pleas. (Doc. No. 1). Magistrate Judge
Thomas M. Parker reviewed Murphy's petition and the
arguments of the parties pursuant to Local Rule 72.2(b)(2)
and recommends I deny the petition. (Doc. No. 10). Murphy has
filed timely objections to Judge Parker's Report and
Recommendation. (Doc. No. 11). For the reasons stated below,
I overrule Murphey's objections and adopt Judge
Parker's Report and Recommendation.
January 15, 2015, a jury found Murphy guilty of two counts of
rape, in violation of Ohio Revised Code §
2907.02(A)(1)(b), and one count of endangering children, in
violation of Ohio Revised Code § 2919.22(B)(1)(E)(2)(D).
The trial court subsequently sentenced Murphy to life in
prison without the possibility of parole on both counts of
rape and a term of eight years on the endangering-children
count, to be served consecutively.
appealed, arguing the evidence presented at trial was
insufficient to support his rape convictions. Ohio v.
Murphy, No. 2015CA00024, 2015 WL 8467756 (Ohio Ct. App.
December 7, 2015). The Fifth District Court of Appeals of
Ohio affirmed in part and reversed in part. The court
concluded the medical evidence and witness testimony was
sufficient to support Murphy's conviction for rape by
fellatio. Id. at *6-8.
appellate court reversed the trial court decision on Count
Two, which charged Murphy with vaginal or anal rape, after
concluding the evidence was insufficient to prove the
essential element of penetration. Id. at *6. The
appellate court determined “the evidence was sufficient
to prove attempted vaginal and/or anal rape, ” modified
the judgement to “reflect a verdict of guilty on the
lesser included offense of attempted rape, ” and
remanded the case back to the trial court of resentencing on
that count only. Id.
Supreme Court of Ohio declined to accept jurisdiction of
Murphy's appeal. On remand, the trial court sentenced
Murphy to a term of 11 years on the lesser-included charge of
attempted rape and again sentenced Murphy to life in prison
without the possibility of parole on Count One and a term of
8 years on Count Three.
must demonstrate, by clear and convincing evidence, that the
state court's factual findings were incorrect. 28 U.S.C.
§ 2254(e)(1). Murphy appears to object to these factual
findings, arguing “the state factual findings cannot
find legitimacy by merely recounting those findings as is
done by [R]espondent and in some instances by the Report and
Recommendation of the Magistrate [Judge].” (Doc. No. 11
at 2-3). This “legitimacy, ” however, is
precisely what the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) mandates. See, e.g.,
Bowling v. Parker, 344 F.3d 487, 497 (6th Cir. 2003)
(“[T]he findings of a state court are presumed to be
correct and can only be contravened if [the petitioner] can
show by clear and convincing evidence that they are
fails to present evidence which could show Judge Parker's
recitation of the factual and procedural background of this
case was incorrect and I adopt those sections of the Report
and Recommendation in full. (Doc. No. 10 at 2-5).
magistrate judge has filed a report and recommendation, a
party to the litigation may “serve and file written
objections” to the magistrate judge's proposed
findings and recommendations, within 14 days of being served
with a copy. 28 U.S.C. § 636. Written objections
“provide the district court with the opportunity to
consider the specific contentions of the parties and to
correct any errors immediately . . . [and] to focus attention
on those issues - factual and legal - that are at the heart
of the parties' dispute.” Kelly v.
Withrow, 25 F.3d 363, 365 (6th Cir. 1994) (quoting
United States v. Walters, 638 F.3d 947, 949-50 (6th
Cir. 1981) and Thomas v. Arn, 474 U.S. 140, 147
(1985)). A district court must conduct a de novo
review only of the portions of the magistrate judge's
findings and recommendations to which a party has made a
specific objection. 28 U.S.C. § 636(b)(1)(C);
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) prohibits the issuance of a writ of
habeas corpus “with respect to any claim that was
adjudicated on the merits in ...