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Glenn v. Bobby

United States District Court, Sixth Circuit

July 3, 2013

DEV ANTE GLENN, Petitioner,
v.
DAVID BOBBY, WARDEN Respondent

MEMORANDUM OPINION

DONALD C. NUGENT, District Judge.

This matter is before the Court on the Report and Recommendation issued by Magistrate Judge Nancy A. Vecchiarelli. (Docket #8). On January 18, 2013, Petitioner, Devante Glenn, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. (Docket #1.) The Magistrate Judge recommends that the Petition be denied and dismissed with prejudice.

Factual and Procedural Background

As set forth by the Magistrate Judge, the factual and procedural history of this case is as follows:

On July 6, 2009, The Cuyahoga County Grand Jury indicted appellant on six counts: Count 1 and 4 alleged aggravated robbery in violation of R.C. 2911.01(A)(1); Counts 2 and 5 alleged kidnaping in violation of R.C. 2905.01(A)(2); and Counts 3 and 6 alleged theft in violation of R.C. 2913.02(A)(1). The state court granted Glenn's motion for acquittal as to the kidnaping charges. In addition, the state court found Glenn guilty of two counts of aggravated robbery, two counts of theft, and of firearm specifications related to these charges.
Glenn, represented by the same counsel as had represented him at trial, filed a timely notice of appeal to the state appellate court raising two assignments of error. The state appellate court, on July 28, 2011, overruled the assignments of error and affirmed the judgment of the trial court. Glenn then filed a timely notice of appeal to the Ohio Supreme Court, asserting two propositions of law. On November 30, 2011, the Ohio Supreme Court denied Glenn leave to appeal and dismissed the appeal as not involving any substantial constitutional question. On October 21, 2011, Glenn filed an application to reopen his direct appeal pursuant to Ohio App. R. 26(B), asserting that appellate counsel had been ineffective for failing to raise several claims. For this application, Glenn was represented by counsel who had not represented him in his original direct appeal. On April 2, 2012, the state appellate court denied Glenn's application to reopen.
Glenn then filed a timely notice of appeal of the state appellate court's denial of his application to reopen to the Ohio Supreme Court, asserting four propositions of law. On June 20, 2012, the Ohio Supreme Court dismissed Glenn's appeal as not involving any substantial constitutional question. On January 18, 2013, Glenn filed in the United States District Court for the Northern District of Ohio Eastern Division a petition for a federal writ of habeas corpus, raising six grounds for relief under the Sixth, Eighth, and Fourteenth Amendments.
Respondent David Bobby, Warden, filed an Answer/Return of Writ on February 22, 2013. (Docket #6.) Glenn filed a Traverse on March 22, 2013. (Docket #7.)

On May 7, 2013, the Magistrate Judge issued a Report and Recommendation. (Docket #8.) The Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. On June 20, 2013, Petitioner Glenn filed his Objections and Exceptions to the Report and Recommendation of the Magistrate Judge. (Docket #12.)

Standard of Review for a Magistrate Judge's Report and Recommendation

The applicable standard of review for a magistrate judge's report and recommendation depends upon whether objections were made to that report. When objections are made to a report and recommendation of a magistrate judge, the district court reviews the case de novo. FED. R. CIV. P. 72(b) states:

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Conclusion

This Court has reviewed the Magistrate Judge's Report and Recommendation de novo, considering the objections and exceptions of the Petitioner. After careful evaluation of the record, this Court adopts the findings of fact and conclusions of law of the Magistrate Judge as its own. The Court hereby ADOPTS ...


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