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Woods v. Tibbals

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

March 29, 2018

Ricardo Woods, Petitioner,
v.
Terry A. Tibbals, Warden, Allen Oakwood Correctional Institution, Respondent.

          OPINION & ORDER

          MICHAEL R. BARRETT JUDGE

         This matter is before the Court on the Magistrate Judge's July 14, 2017 Report and Recommendation (“R&R”) and August 15, 2017 Supplemental R&R recommending that Petitioner's Petition be dismissed with prejudice. (Docs. 19, 22).

         The parties were given proper notice under Rule 72(b) of the Federal Rules of Civil Procedure, including notice that the parties would waive further appeal if they failed to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947, 949-950 (6th Cir. 1981). Petitioner filed Objections to the R&R (Doc. 20) and the Supplemental R&R (Doc. 25). Respondent has not filed a response to those Objections.

         In the Supplemental R&R, the Magistrate Judge noted that as to the recommendation denying claims Two, Four, Five, Six, Seven, Eight, Nine, Ten and Eleven, Petitioner has only filed general objections. Specifically, Petitioner states “[t]his objection is made to preserve the record and to avoid waiver of arguments for possible appeal.” (Doc. 20, PAGEID # 4175).

         “[O]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.” Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). “The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.” Drew v. Tessmer, 36 Fed.Appx. 561, 561 (6th Cir. 2002) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).

         However, in Petitioner's objections to the Magistrate Judge's Supplemental R&R, Petitioner does address the Magistrate Judge's recommendations denying claims Two, Four, Five, Six, Seven, Eight, Nine, Ten and Eleven by repeating the arguments made in his Reply. (Doc. 25, PAGEID # 4274). The Court questions whether this is a proper objection, but will nevertheless address the Magistrate Judge's recommendation denying claims Two, Four, Five, Six, Seven, Eight, Nine, Ten and Eleven.

         For the reasons stated below, the Court SUSTAINS Petitioner's objections as to Ground Three, but OVERRULES Petitioner's remaining objections to the Magistrate Judge's July 14, 2017 R&R and August 15, 2017 Supplemental R&R.

         I. BACKGROUND

         The factual and procedural history of this case is described in the Magistrate Judge's July 14, 2017 R&R. (Doc. 19, PAGEID #4126-4130). The same will not be repeated here except to the extent necessary to address Petitioner's objections.

         This matter arises out of Petitioner's habeas action brought pursuant to 28 U.S.C. § 2254 to obtain relief from his convictions in the Hamilton County Common Pleas Court on charges of purposeful murder, felony murder and felonious assault, all with a firearm specifications, and two counts of possessing a weapon while under disability.

         Petitioner has set forth eleven grounds for relief in his Petition. The Magistrate Judge recommends denying relief on all eleven grounds and dismissing the Petition with prejudice.

         II. ANALYSIS

         A. Standard of Review

         This Court shall consider objections to a magistrate judge's order on a nondispositive matter and “shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).

         B. Ground One: Dying declaration

         In Ground One, Petitioner claims that the trial court violated his rights under the Confrontation Clause by admitting an identification of him made by the murder victim, David Chandler. At the time of the identification, Chandler was paralyzed and on a ventilator. The police asked Chandler to blink on the letter of the alphabet which corresponded with the shooter's first name. (Doc.10-8, PAGEID #560-61). The police then showed Chandler a photo of Petitioner and asked if he was the shooter. (Doc. 10- 8, PAGEID #563-64). According to the police, Chandler blinked three times for “yes.” (Doc. 10-8, PAGEID #564).

         The Magistrate Judge explained that Petitioner presented this constitutional claim on direct appeal. Therefore, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, only permits habeas relief if the state court judgment “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 “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). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

         The Magistrate Judge explained that there is no Supreme Court holding on the parameters of the dying declaration exception to the Confrontation Clause. The Magistrate Judge discussed Giles v. California, 554 U.S. 353 (2008), citied by Petitioner, and concluded that the Supreme Court's discussion of the dying declaration exception in that case was dicta.

         The United States Supreme Court has not expressly recognized that dying declarations are an exception to the Sixth Amendment's confrontation right. The Supreme Court has explained:

in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, [ ] we first suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause. Id., at 56, n. 6, 124 S.Ct. 1354; see also Giles v. California, 554 U.S. 353, 358- 359, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). We noted in Crawford that we “need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations.” 541 U.S., at 56, n. 6, 124 S.Ct. 1354. Because of the State's failure to preserve its argument with regard to dying declarations, we similarly need not decide that question here.

Michigan v. Bryant, 562 U.S. 344, 351, n.1, 131 S.Ct. 1143, 1151, 179 L.Ed. 2D 93 (2011); see also Walker v. Harry, 462 Fed.Appx. 543, 545-46 (6th Cir. Feb. 13, 2012) (explaining that “[i]n Crawford and again in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), the Supreme Court hinted that dying declarations may fall within an exception to the constitutional bar against testimonial hearsay.”).

         Because the Supreme Court has yet to rule on the status of dying declarations under the Confrontation Clause, the Court finds no error in the Magistrate Judge's conclusion that Petitioner's claim is not cognizable on federal habeas review.

         C. Ground Two: Pre-trial identification

         In Ground Two, Petitioner argues that Chandler's identification of him occurred under suggestive circumstances and its admission at trial violated his due process rights. The Magistrate Judge explained that Petitioner raised this claim on direct appeal. The Magistrate Judge concluded that the First District Court of Appeal's conclusion on reliability of the identification was not contrary to or an objectively unreasonable application of federal law.

         As the Supreme Court has explained:

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id., at 411, 120 S.Ct. 1495. Rather, that application must be “objectively unreasonable.” Id., at 409, 120 S.Ct. 1495. This distinction creates “a substantially higher threshold” for obtaining relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).

Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010).Here, the Magistrate Judge explained the First District noted that there was evidence that Chandler had purchased drugs from Woods in the area where the shooting occurred on a number of prior occasions; and it was Chandler who suggested bringing a photo of Woods to the hospital for possible identification. The Court finds no error in the Magistrate Judge's conclusion that Ground Two should be dismissed on the merits.

         D. Ground Three: Batson violation

         In Ground Three, Petitioner argues that the trial court incorrectly applied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, Petitioner argues that the trial court required Petitioner to demonstrate a pattern of race-based jury strikes before shifting the burden to the state to explain its use of peremptory challenges with a race-neutral explanation.[1] The Magistrate Judge noted that as part of Petitioner's direct appeal, the First District Court of Appeals found that the trial court erred because the opponent of a peremptory challenge is not required to demonstrate a pattern of discrimination. However, the First District found that the trial court rectified the error by requiring the state to provide a ...


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