United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
MICHAEL R. BARRETT JUDGE
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.
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.
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).
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)).
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.
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.
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
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.
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.
Standard of Review
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).
Ground One: Dying declaration
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).
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).
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
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
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
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
Ground Two: Pre-trial identification
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.
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.
Ground Three: Batson violation
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. 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 ...