United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE
a habeas corpus case pursuant to 28 U.S.C. § 2254.
Following referral to her docket, United States Magistrate
Judge Kathleen B. Burke filed a Report and Recommendation
(R&R) recommending that I deny the petition. (Doc. 14).
She likewise denied petitioner's motion for appointment
of an expert. (Id. at 1369-70).
is petitioner's non-specific objection to the R&R.
(Doc. 15). As respondent points out (Doc. 16, ID 1374), I may
adopt the R&R on the grounds that petitioner has filed a
general objection, rather than specifying the basis for his
objection, much less submitting an argument thereon. See
Howard v. Sec. of Health and Human Servs., 932 F.2d 505,
509 (6th Cir. 1991) (“A general objection . . .has the
same effects as would a failure to object.”).
I address Judge Burke's legal analysis and conclusion as
if the petitioner had perfected his objections to the
R&R. Doing so, I find, on the basis of de novo review,
that whatever objections the petitioner might have made could
not be well taken.
I adopt Judge Burke's R&R as the order of this court,
deny relief and dismiss the petition. I also decline to issue
a Certificate of Appealability, as jurists of reason could
not reasonably reach a different result.
October 12, 2009, as “M, ” a fourteen-year-old
child, was walking to school, the petitioner grabbed her, put
a knife to her throat, threatened her and forced her into an
abandoned house. Petitioner took M upstairs to a second-floor
bedroom. Despite M's pleas to leave, the petitioner raped
her-keeping the knife within close reach during the attack.
When he was done, petitioner left. M kicked the knife away,
dressed and ran home.
arriving home, M was incoherent and in tears. She attempted
to tell her brother what happened but could not speak
clearly. He called their parents and M was able to explain
what happened. After unsuccessfully attempting to find the
petitioner in the neighborhood, M's family took her to
the police and reported the crime. M then underwent a rape
kit and medical examination at the Akron Child Advocacy
went to the abandoned house. There, they found a evidence
corroborating M's statement: a kitchen knife, the
victim's underwear, and a pair of glasses M reported
losing that morning. They observed bodily fluids on the
floor. The officers took photos of the scene and recovered
the underwear, glasses and the knife. The house burned down
two days later.
identified petitioner from a photographic lineup; she
identified him again at trial, reiterating with certainty
that he was her assailant. DNA deposited during the rape also
matched the petitioner's DNA. Petitioner acknowledged the
genetic match but insisted M had consented to the encounter,
even though the knife and evidence of blunt force trauma to
M's genital area suggested otherwise.
Mahoning County grand jury indicted petitioner on charges of
rape, kidnaping and gross sexual imposition in November,
2009. His trial did not begin until February 28, 2011.
interim, the petitioner requested multiple continuances and
discharged two attorneys.
December 11, 2009, petitioner's first attorney submitted
a signed waiver of petitioner's right to a speedy trial.
While the record confirms that petitioner was present in the
courtroom when his attorney submitted the waiver, petitioner
has subsequently argued that he was not there, and that his
signature was a forgery.
discharged his first lawyer in July, 2010, and the court
granted defense counsel's motion to withdraw. The court
appointed petitioner a new attorney in August, 2010, but this
second attorney also withdrew within a month of his
appointment. In September 2010, the court noted that
petitioner had retained new counsel. At that point, trial was
scheduled for November 8, 2010.
October 2010, petitioner's third attorney moved to
dismiss the indictment, alleging a violation of
petitioner's speedy trial rights. Petitioner claimed,
contrary to what was reflected in the record, that he was not
present in court when his counsel filed a waiver of his
speedy trial rights and did not sign the speedy trial waiver.
The court held a hearing on the motion and overruled it.
November 3, 2010, the court received a letter from petitioner
dated April 15, 2010. In it, petitioner objected to the
speedy trial waiver and demanded a trial within a reasonable
time. The court held a pretrial hearing that same day, and
the parties agreed to reschedule trial for February 28,
2011-the earliest date available to the court and the
trial began as scheduled on February 28, 2011. Three days
later, disbelieving the petitioner's consent defense, the
jury convicted him of rape, two counts of kidnaping, and
gross sexual imposition. The ...