United States District Court, N.D. Ohio, Western Division
W.D. Henton, Petitioner
Michelle Miller, Respondent
Jeffrey J. Helmick United States District Judge
me is the April 6, 2017 Report and Recommendation of
Magistrate Judge George J. Limbert recommending dismissal of
Petitioner W.D. Henton's action seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 9). Also
before me are the pro se Petitioner's
objections (Doc. No. 10) and the Respondent's
response (Doc. No. 11). For the reasons stated below, I adopt
the Magistrate Judge's recommendation as set forth in the
Report and Recommendation.
Applicable Legal Standard
district court must 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 Norman v. Astrue, 694 F.Supp.2d 738, 740
(N.D. Ohio 2010). “De novo determination requires
‘fresh consideration' of a magistrate judge's
recommendation, independent of the magistrate judge's
conclusions.” 14 Moore's Federal Practice §
72.11[a] (3d 2017). In conducting a de novo review, the
court need not conduct a de novo hearing on the matter.
Lifeng Chen v. New Trend Apparel, Inc., 8 F.Supp.3d
406, 416 (S.D.N.Y. 2014), citing United States v.
Raddatz, 447 U.S. 667, 675-76 (1980).
The Report and Recommendation
Magistrate Judge Limbert's Report and Recommendation, he
sets forth the relevant factual and procedural history. This
includes history of the state trial court and post-conviction
proceedings, including the observation there was no direct
appeal by Petitioner. (Doc. No. 9 at pp. 1-4). The Magistrate
Judge summarized Petitioner's grounds for relief as
[T]hey all seem to relate to allegations that the trial court
committed constitutional error in sentencing him as he
contends that the written plea agreement that he signed, and
the court accepted, barred a sentence beyond three years of
(Id. at p. 12). The Magistrate Judge then considered
the grounds for relief and determined Petitioner failed to
properly exhaust his claims. Alternatively, the Magistrate
Judge conducted a merits analysis and found no merit to
Petitioner's grounds for relief as to his plea agreement.
For these reasons, the recommendation is to dismiss the
petition with prejudice.
by pro se litigants are to be interpreted leniently
and liberally construed. Erickson v. Pardus, 551
U.S. 89 (2007). A petitioner must make specific objections to
a magistrate's report in order to preserve his claims for
appellate review. Smith v. Detroit Fed'n of Teachers,
Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). These
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) (citing Howard v. Sec'y of Health
and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)).
See also Austin v. Bedford Township Police
Dep't., 859 F.Supp.2d 883, 888 (E.D. Mich. 2011).
submitted his objections in an eleven page filing. (Doc. No.
10). I have carefully reviewed the objections and agree with
the Magistrate Judge's observations that Petitioner's
arguments are somewhat confusing but appear to take issue
with the following: (1) hurdles aimed at procedural default
and (2) imposition of a sentence which is contrary to law. I
Magistrate Judge correctly determined that exhaustion barred
a merits review because Petitioner “never filed a
direct appeal of his conviction and sentence or a motion for
delayed appeal. . . [and he] presents no cause to excuse his
failure to exhaust these claims in the state courts.”
(Doc. No. 9 at pp. 13-14). See Maupin v. Smith, 785
F.2d 135, 138-139 (6th Cir. 1986) (burden is on
petitioner to demonstrate a constitutional violation and
actual prejudice by that constitutional error).
the Magistrate Judge conducted a merits analysis and
determined there was no merit to Petitioner's grounds for
relief. The Sixth Circuit's discussion on the validity of
plea agreements provides useful guidance:
[T]he state of Ohio has elected to adopt a rule that only
enforceable plea agreements are those which are presented to,
and accepted by, the trial court judge. This is not unusual,
and, indeed, it comports with our own ...