Opinion
CASE NO. 2:08-CV-776.
February 8, 2010
OPINION AND ORDER
On January 12, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. Petitioner objects to the Magistrate Judge's recommendation of dismissal of his claim of insufficiency of the evidence on the merits, and his sentencing claims as procedurally defaulted. Petitioner again raises all of the same arguments he previously presented.
Petitioner again argues that there was not constitutionally sufficient evidence to support his conviction for felonious assault. The Ohio Court of Appeals rejected that argument. As explained in the January 12, 2010 Report and Recommendation, doc. 27, at pp. 11-15, the Ohio court's factual findings are presumed correct, 28 U.S.C. § 2254(e)(1) and its application of federal law is binding unless it is an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). For the reasons set out in the Report and Recommendation, the Court finds that the Ohio Court of Appeals' fact findings are binding and that its application of clearly established federal law was not unreasonable.
Petitioner also objects to the Magistrate Judge's finding that he defaulted his claim that his sentence violated due process and the Ex Post Facto Clause. For the reasons set out in the Report and Recommendation, doc. 27, at pp. 19-21, petitioner's sentencing claims are procedurally barred.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. After careful consideration of the entire record, and for the reasons already detailed in the Magistrate Judge's Report and Recommendation, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.