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Johnstone v. Gansheimer

United States District Court, Sixth Circuit

April 29, 2013

CHARLES K. JOHNSTONE JR., Petitioner,
v.
RICH GANSHEIMER, Respondent.

MEMORANDUM OF OPINION

CHRISTOPHER A. BOYKO, District Judge.

This matter comes before the Court on Petitioner Charles K. Johnstone Jr.'s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1). For the following reasons, the Court accepts and adopts the Magistrate Judge's Report and Recommendation, and denies Petitioner's Petition.

FACTS

The following is a factual synopsis of Petitioner's claims. The Magistrate Judge's Report and Recommendation, adopted and incorporated, provides a more complete and detailed discussion of the facts.

Petitioner was indicted on June 3, 2008 by a Cuyahoga County Grand Jury for three counts of Aggravated Robbery, one count of Kidnapping, and two counts of Felonious Assault, each with one and three year Firearm Specifications. Subsequent to a jury trial, Petitioner was acquitted of one of the Felonious Assault charges, and all Firearm Specifications, but found guilty of the remaining counts. Petitioner was sentenced on February 18, 2009 to an aggregate term of eight years. Petitioner filed a timely Notice of Appeal. The Court of Appeals affirmed the conviction. Petitioner appealed that decision to the Supreme Court of Ohio. On Sept. 29, 2010, the Ohio Supreme Court denied leave to appeal, and dismissed the Appeal as not involving any substantial constitutional question.

On September 28, 2011, Petitioner filed the instant Petition asserting the following Grounds for relief:

GROUND ONE: The state co[u]rts decision with prejudice, erroneously found petitioners conviction to be supported by sufficiency of the evidence in determining manifest weight of the evidence in violation of due process.
GROUND TWO: The adjudication of petitioners motion to suppress eyewitness identification at trial was a violation of due process permitting a fundamentally unreliable identification.
GROUND THREE: Petitioner was denied effective assistance of counsel guaranteed by Article I Section 10 of the Ohio Constitution and the 6th and 14th Amendments to the United States Constitution.

On November 29, 2011, this Court referred Petitioner's Petition to the Magistrate Judge for a Report and Recommendation. The Magistrate Judge issued his Report and Recommendation on March 22, 2013. On April 22, 2013, Petitioner filed Objection to Magistrate's Report and Recommendation.

STANDARD OF REVIEW

When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision "was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States." Further, a federal court may grant habeas relief if the state court arrives at a decision opposite to that reached by the Supreme Court of the United States on a question of law, or if the state court decides a case differently than did the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of whether or not a state court decision unreasonably applied clearly established federal law is whether that state adjudication was "objectively unreasonable" and not merely erroneous or incorrect. Williams, 529 U.S. at 409-411.

Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are presumed correct, rebuttable only by clear and convincing evidence to the contrary. McAdoo v. Elo, 365 F.3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules Governing §2254 states:

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. A judge of the court may accept, reject, or modify in whole or in ...

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