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Wilson v. Kelly

United States District Court, N.D. Ohio, Western Division

March 9, 2017

Andre L. Wilson, Petitioner
v.
Bennie Kelly, Warden, Respondent

          MEMORANDUM OPINION

          Jeffrey J. Helmick United States District Judge

         I. Introduction

         On July 26, 2013, Petitioner Andre L. Wilson, with the assistance of counsel, filed a petition for a writ of habeas corpus with this court pursuant to 28 U.S.C. § 2254. (Doc. No. 1). The matter was referred to Magistrate Judge James R. Knepp, II for a Report and Recommendation (“R & R”). Magistrate Judge Knepp recommends I dismiss Wilson's petition. (Doc. No. 10). Wilson filed objections to the R & R. (Doc. No. 13). For the reasons stated below, I adopt Magistrate Judge Knepp's recommendation to dismiss Wilson's petition and overrule Wilson's objections.

         II. Background

         Magistrate Judge Knepp accurately and comprehensively set forth the procedural background of this case, and I adopt those sections of the R & R in full. (Doc. No. 10 at 1-7).

         In 2010, Wilson was indicted for a crime committed in 2008 including multiple counts of aggravated murder and kidnapping with firearm specifications, plus one count of having weapons under disability for a crime that had been committed in 2008. (Doc. No. 5-1, Ex. 1). After a jury trial, Wilson was acquitted of one count of aggravated murder, but found guilty of one count of the lesser-included offense of murder, one count of aggravated murder, and one count of kidnapping, all with a firearm specification. (Doc. No. 5-1, Ex. 7). In addition, Wilson was found guilty of having weapons under disability. Id.

         The conviction for murder, aggravated murder, and kidnapping were allied offenses under O.R.C. § 2945.21(A); the prosecutor chose to proceed in sentencing for the aggravated murder conviction. (Doc. No. 5-1, Ex. 8). Wilson was sentenced to life with the possibility of parole after 33 years for aggravated murder with a firearm specification and three years, to be served concurrently, for the conviction of having weapons under disability. Id.

         On February 4, 2011, Wilson, with the assistance of counsel, filed a notice of appeal with the Ohio Eighth District Court of Appeals citing eleven grounds of error. (Doc. No. 5-1, Ex. 10). The Ohio Court of Appeals affirmed the trial court judgment (Doc. No. 5-1, Ex. 13) and denied Wilson's application for reconsideration. (Doc. No. 5-1, Exs. 14 & 16). Wilson timely appealed to the Supreme Court of Ohio, citing the same eleven grounds of error. (Doc. No. 5-1, Ex. 18). The Supreme Court of Ohio denied leave to appeal and dismissed the appeal as “not involving any substantial constitutional question.” (Doc. 5-1, Ex. 20).

         Wilson, with the assistance of counsel, filed his petition for a writ of habeas corpus relief under § 2254 on July 26, 2013. (Doc. No. 1). The seven grounds of relief asserted in the petition were previously asserted as eleven grounds in the state appeals process. (Doc. No. 1 & Doc. No. 5-1, Exs. 10 & 18).

         III. Standard of Review

         A district court may conduct a de novo review of “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.” Fed.R.Civ.P. 72(b)(3). See also Local Rule 72.3(b). A general objection to a magistrate's report and recommendation which fails to specify the issues of contention does not satisfy the requirement. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). So long as a party was properly informed of the consequences of failing to object, a general objection constitutes waiver of subsequent review by the district court.

         IV. Discussion

         Wilson offered no objection to Grounds One or Four in his objections to Magistrate Judge Knepp's R & R. (Doc. No. 13). I will address his objections to the remaining five Grounds: Two, Three, Five, Six, and Seven.

         The Anti-Terrorism and Effective Death Penalty Act (AEDPA) grants the district court jurisdiction to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[F]ederal habeas review does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Estelle v. McGuire, 502 U.S. 62, 67 (1991). As discussed in Bey v. Bagley, 500 F.3d 514, 521 (6th Cir. 2007), there are only two instances when a state, acting in compliance with state law, may violate due process so as to warrant ...


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