Kerr v. Turner, 3:15 CV 2006. (2016)
Court: District Court, N.D. Ohio
Number: infdco20160301c24
Visitors: 16
Filed: Feb. 09, 2016
Latest Update: Feb. 09, 2016
Summary: REPORT & RECOMMENDATION WILLIAM H. BAUGHMAN, Jr. , Magistrate Judge . Before me by referral 1 in this matter of Jeremy Kerr's pro se petition for a writ of habeas corpus under 28 U.S.C. 2254 2 is a motion by Kerr for summary judgment. 3 The State has responded in opposition to the motion. 4 I note first that the State has only recently filed a return of the writ 5 together with its submission of the underlying record of proceedings. Kerr, in turn, responded with a traverse 6 fil
Summary: REPORT & RECOMMENDATION WILLIAM H. BAUGHMAN, Jr. , Magistrate Judge . Before me by referral 1 in this matter of Jeremy Kerr's pro se petition for a writ of habeas corpus under 28 U.S.C. 2254 2 is a motion by Kerr for summary judgment. 3 The State has responded in opposition to the motion. 4 I note first that the State has only recently filed a return of the writ 5 together with its submission of the underlying record of proceedings. Kerr, in turn, responded with a traverse 6 file..
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REPORT & RECOMMENDATION
WILLIAM H. BAUGHMAN, Jr., Magistrate Judge.
Before me by referral1 in this matter of Jeremy Kerr's pro se petition for a writ of habeas corpus under 28 U.S.C. § 22542 is a motion by Kerr for summary judgment.3 The State has responded in opposition to the motion.4
I note first that the State has only recently filed a return of the writ5 together with its submission of the underlying record of proceedings. Kerr, in turn, responded with a traverse6 filed the same day as the present motion re-presenting his motion for summary judgment.7 In this current motion, I further note that Kerr has denied that the state court record is entitled to a presumption of correctness.8
As the State observes, summary judgment is not allowed when material facts are in dispute.9 Here, Kerr's claim that the state court's factual findings are incorrect of itself alleges a dispute as to material facts underlying this conviction.
Thus, I recommend that without prejudice to a final disposition of the petition upon full review, the present motion for summary judgment be denied.
FootNotes
1. ECF # 8.
2. ECF # 1.
3. ECF # 16.
4. ECF # 17.
5. ECF # 14.
6. ECF # 15.
7. ECF # 16.
8. Id. at 3.
9. ECF # 17 at 1.
Source: Leagle
