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Jaros v. Houk

United States District Court, Sixth Circuit

September 23, 2013

MICHAEL W. JAROS, PETITIONER,
v.
MARC HOUK, Warden, RESPONDENT

MEMORANDUM OPINION

SARA LIOI, District Judge.

Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Vernelis K. Armstrong, recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. No. 11.) Respondent filed objections. (Doc. No. 12.) Petitioner Michael W. Jaros ("petitioner" or "Jaros"), who is represented by counsel, also filed objections, along with his opposition to the respondent's objections. (Doc. No. 13.) Pursuant to Fed.R.Civ.P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the objections. For the reasons discussed below, all objections are overruled and the petition for writ of habeas corpus is dismissed.

I. BACKGROUND

On July 2, 2009, a grand jury returned an indictment against petitioner, charging him with two counts of rape (Ohio Rev. Code § 2907.02(A)(2) and (B)), one count of aggravated burglary (Ohio Rev. Code § 2911. (A)(2)), one count of kidnapping (Ohio Rev. Code § 2905.01(A)(4) and (C)), and one count of aggravated robbery (Ohio Rev. Code § 2911.01(A)(1)). (Doc. No. 9-1, Ex. 1.)

Following a jury trial in Lucas County Court of Common Pleas, petitioner was found guilty of aggravated burglary, kidnapping, and aggravated robbery. He was acquitted on the two rape charges. (Doc. 9-1, Ex. 3.) Petitioner was sentenced to three consecutive nine-year prison terms. (Doc. No. 9-1, Ex. 4.)

Represented by his trial counsel, on April 12, 2010, petitioner filed a direct appeal.[1] (Doc. No. 9-1, Ex. 5.) On September 30, 2011, the Sixth District Court of Appeals of Ohio affirmed the convictions and sentences. (Doc. No. 9-1, Ex. 8.) On November 3, 2011, represented by new counsel, petitioner appealed to the Ohio Supreme Court[2] and, on February 1, 2012, that court declined jurisdiction, dismissing the appeal as not involving any substantial constitutional question (Doc. No. 9-1, Ex. 12).

While his direct appeal was pending, on or about March 25, 2011, [3] represented by his trial counsel, petitioner filed a motion for new trial in the common pleas court. (Doc. No. 9-1, Ex. 20.) Pointing to the affidavits of two "witnesses, " petitioner claimed to have "newly discovered evidence." On September 27, 2011, the court denied the motion. (Doc. No. 9-1, Ex. 22.) Petitioner apparently did not appeal the ruling.

On November 3, 2011, represented by the counsel who had represented him before the Ohio Supreme Court on direct appeal, petitioner filed an application to reopen his appeal.[4] (Doc. No. 9-1, Ex. 13.) On November 29, 2011, in a detailed opinion, the Sixth District Court of Appeals denied the application to reopen. (Doc. No. 9-1, Ex. 15.) Still represented by counsel, petitioner filed a notice of appeal to the Ohio Supreme Court;[5] this appeal was dismissed on February 22, 2012 as not involving any substantial constitutional question. (Doc. No. 9-1, Ex. 19.)

On March 1, 2012, represented by counsel, petitioner filed the instant petition for writ of habeas corpus. (Doc. No. 1.) The case was referred to the magistrate judge for a report and recommendation and is now at issue for resolution.

II. DISCUSSION

A. Standard of Review

Under 28 U.S.C. § 636(b)(1), "[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." Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at * 1 (6th Cir. Sept. 30, 1994) ("Any report and recommendation by a magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo review by the district court in light of specific objections filed by any party."). "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." Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004). See also Fed.R.Civ.P. 72(b)(3) ("[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to"); LR 72.3(b) (any objecting party shall file "written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections"). After review, the district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

In conducting its de novo review in a habeas context, this Court must be mindful of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No.104-132, 110 Stat. 1214 ("AEDPA"), which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).

"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

In addition, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant [for a writ of habeas corpus] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

B. The R&R's Treatment of Each Ground for Relief

The petition alleges five grounds for relief, each with ...


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