United States District Court, N.D. Ohio, Western Division
Andre L. Wilson, Petitioner
Bennie Kelly, Warden, Respondent
Jeffrey J. Helmick United States District Judge
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.
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).
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
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.
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).
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).
Standard of Review
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
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.
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 ...