Opinion
CASE NO.: 2:09-CV-115.
October 5, 2010
OPINION AND ORDER
On August 17, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Report and Recommendation, Doc. No. 12. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. Objections, Doc. No. 17. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner asserted in the petition that the evidence was constitutionally insufficient to sustain his conviction on attempted murder and felonious assault because the State failed to prove the requisite mental element, and because it was another person who was found to be in possession of the firearm from which some of the bullets had been fired. The Magistrate Judge recommended that the latter argument be dismissed as waived, due to petitioner's failure to present such claim to the Ohio courts, and that the former argument be dismissed on the merits. Petitioner objects to these recommendations. Specifically, petitioner disputes the factual findings of the state appellate court and insists that he fairly presented both of his arguments to the Ohio courts. See Objections.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Upon review of the record, this Court is not persuaded that petitioner's objections to the Report and Recommendation are meritorious or that habeas relief is warranted. Petitioner has failed to meet his burden of establishing that any of the factual findings of the state appellate court are incorrect, see 28 U.S.C. § 2254(e), nor does he indicate which of those findings he disputes. Moreover, petitioner has failed to establish that the Ohio Court of Appeals unreasonably applied Jackson v. Virginia, 443 U.S. 307 (1979), in rejecting his claim of insufficiency of the evidence.
Therefore, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.