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Taylor v. Buchanan

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

January 8, 2020

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

          Michael R. Merz Magistrate Judge

          OPINION AND ORDER

          MICHAEL R. BARRETT UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Report and Recommendations of the Magistrate Judge (Doc. 10), Petitioner's pro se objections (Doc. 19), the Supplemental Report and Recommendations of the Magistrate Judge (Doc. 22), and Petitioner's pro se supplemental objections (Doc. 23)-all pertaining to a petition for writ of habeas corpus. The Magistrate Judge also issued a Report and Recommendations (Doc. 18), which pertained to an intervening judgment (Doc. 12) that had adopted his initial Report and Recommendations. Convinced that this judgment was the result of an improper date calculation related to Petitioner's objection deadline, the Magistrate Judge recommended that it be reopened.

         Having considered the filings de novo, the Court will grant Petitioner's Motion to Alter or Amend Judgment (Doc. 17) but will dismiss his petition for writ of habeas corpus (Doc. 1).

         I. BACKGROUND

         Petitioner was convicted after a trial by jury of trafficking in oxycodone. State v. Taylor, 2016-Ohio-2781, ¶¶ 1, 5 (Ohio Ct. App.).[1] His conviction turned upon three controlled buys through a confidential informant, which led to a search warrant and his ultimate arrest. Id. at ¶¶ 5-7. He appealed his conviction and the Fourth District Court of Appeals (the “Fourth District”) affirmed, except to the extent that the post-release control portion of his sentence was vacated for failure to advise of the same at the time of sentencing. Id. at ¶ 42. Petitioner then sought to reopen the appeal to assert a claim of ineffective assistance of appellate counsel under Ohio App. R. 26(B) (Doc. 6, PAGEID 164-178) as his petition for review by the Supreme Court of Ohio was pending. Both requests were ultimately denied. (See Id. at PAGEID 163, 182, 196).

         Petitioner's federal habeas petition sets out 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.

(Doc. 10, PAGEID 525-26 (quoting Doc. 1, PAGEID 4, 6, 11, 16, and 20)).

         II. ...


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