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Tevis v. Sims

United States District Court, E.D. Kentucky, Central Division, Lexington

July 13, 2018

JOSHUA LEE TEVIS, Petitioner,
v.
RAVONNE SIMS, Warden Respondent.

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood Senior U.S. District Judge.

         This matter is before the Court upon the Report and Recommendation of former United States Magistrate Judge Robert E. Wier [DE 22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22] and Petitioner's objections [DE 23');">23');">23');">23]. This action was referred to the magistrate judge for the purpose of reviewing the merit of Joshua Tevis's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">2254. [DE 1]. Judge Wier recommended that Tevis's Petition be denied. [DE 22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22]. Tevis filed objections. [DE 23');">23');">23');">23]. Having considered the matter de novo, the Court adopts Judge Wier's recommendation as its own.

         I. Background

         A Fayette Circuit Court jury found Joshua Tevis guilty of reckless homicide and being a persistent felony offender in the first degree after a trial in December 2014. See Tevis v. commonwealth, No. 2015-CA-213-MR, 2016 WL 1273040, at *1 (Ky. Ct. App. Apr. 1, 2016). Tevis received a fifteen-year sentence and after exhausting appeals in state court, he filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">2254. [DE 1]. Warden Ravonne Sims responded [DE 16] and Tevis replied [DE 18]. Former Magistrate Judge (and current District Judge) Robert E. Wier issued a report and recommendation in which he recommended this court dismiss the petitioner with prejudice and deny a certificate of appealability. [DE 22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22]. Tevis filed timely objections [DE 23');">23');">23');">23] making this matter ripe for review.

         The Kentucky Court of Appeals provided a succinct version of the facts in this case:

At approximately 2:30 a.m. on September 22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22');">22, 2013, Tevis existed the Diva's Gentleman's Club in Lexington and walked to his vehicle. At the same time, Johntel Crocker and others were attempting to separate two women who were fighting near Tevis's vehicle. As Tevis approached his vehicle, he observed Crocker step on the rear bumper of his vehicle. Tevis took exception to this and exchanged words with Crocker as they crossed paths. Crocker paused, turned, and shoved Tevis against a wall. Almost immediately, Tevis pulled a gun and shot Crocker in the chest. Crocker ran, but collapsed moments later. Tevis fled the scene on foot, leaving his vehicle behind. When police arrived moments later, they found Crocker unresponsive. Officers and paramedics rendered first-aid; however, Crocker was pronounced dead upon arrival at the hospital.
During their investigation, police obtained the surveillance video of the Diva's parking lot and eventually determined that Tevis was the individual who shot and killed Crocker. Soon afterward, Tevis turned himself in to the Lexington Police Department, and authorities charged him with Crocker's murder.
On November 25, 2013, a Fayette County Grand Jury indicted Tevis for murder, being a convicted felon in possession of a handgun, and being a PFO in the first degree. The case proceeded to trial on December 9, 2014. At trial, Tevis's theory of the case was that he shot Crocker in self-defense. At the conclusion of a three-day trial, the jury returned a verdict of not guilty on the charge of murder. However, the jury convicted Tevis of reckless homicide, and found him to be a persistent felony offender in the first degree. The trial court imposed the recommended sentence of five years for the reckless homicide, enhanced to fifteen years by virtue of Tevis's conviction as a persistent felony offender.
Tevis, 2016 WL 1273040, at *1 (footnote omitted).

         In his habeas petition, Tevis argues (1) that the jury viewed excluded evidence, and (2) the prosecutor inappropriately referenced Tevis's decision to remain silent. Both errors, according to Tevis, require this Court grant a Writ of Habeas Corpus. Judge Wier disagreed, and so does this Court.

         II. Standard of Review

         Under Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. p. 7');">p. 72(b)(2). “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(c). Any objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985). “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” VanDiver v. Martin, 304 F.Supp.2d 934, 937-38 (E.D. Mich. 2004).

         III. ...


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