Isaac Turner, Petitioner-appellant, v. Terry Morris, Respondent-appellee, 966 F.2d 1454 (6th Cir. 1992)

Petitioner Isaac Turner appeals from the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Petitioner was indicted in May 1984 on one count of aggravated burglary in violation of Ohio Revised Code § 2911.11, one count of kidnapping in violation of Ohio Rev.Code § 2905.01, and two counts of rape in violation of Ohio Rev.Code § 2907.02. On January 14, 1985, a Cuyahoga County, Ohio, jury convicted petitioner of both counts of rape and the count of kidnapping. Petitioner was acquitted of the aggravated burglary charge.

The trial court sentenced petitioner to concurrent terms of 7 to 25 years for each conviction. Subsequently, the trial court modified petitioner's sentence to 5 to 25 years for each conviction, the sentences to be served concurrently.

Petitioner appealed his conviction to the Ohio Court of Appeals, Eighth District. The appeal presented nine assignments of error, including the four issues raised in this case. The Ohio Court of Appeals affirmed petitioner's conviction on December 12, 1985.

Petitioner next filed a motion for leave to appeal to the Supreme Court of Ohio. The motion presented eight assignments of error, again including the issues in this case. On April 23, 1986, the Ohio Supreme Court dismissed the appeal on the ground that no substantial constitutional question was presented.

Petitioner was released on parole on July 30, 1990. He filed his petition for a writ of habeas corpus on July 22, 1986, presenting seven grounds for relief.

The matter was referred to a magistrate judge who recommended that the petition for a writ of habeas corpus be dismissed. After de novo review in light of petitioner's objections, the district court adopted the magistrate judge's report and recommendation and dismissed the habeas petition on September 17, 1991. This timely appeal followed. On October 18, 1991, the district court certified that probable cause exists for petitioner's appeal.

On appeal, the issues are whether petitioner was denied due process when: (1) the trial court refused to instruct the jury on common law marriage, (2) the trial court refused to instruct the jury on lesser included offenses, (3) the trial court concluded that petitioner bore the burden of proof on the affirmative defense of intoxication, and (4) petitioner was denied a new trial on the grounds of newly discovered evidence.

After hearing argument of counsel and duly considering the briefs and record filed herein, we AFFIRM the order of the district court denying the writ for the reasons stated in the magistrate judge's report and recommendation of July 8, 1987, and the district judge's memorandum and order of September 17, 1991.