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Hudson v. Cook

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

May 2, 2018

Riodejuonerol Hudson, Petitioner
Brian Cook, Respondent



         This matter is before me on the August 30, 2016 Report and Recommendation by Magistrate Judge Kathleen B. Burke. (Doc. No. 12). Also before me is Petitioner's timely objection (Doc. No. 13) and his request for a status conference. (Doc. No.15). For the reasons stated below, I adopt the Magistrate Judge's Report and Recommendation.


         A 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[2][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).


         Before turning to the Petitioner's specific objections, I note there are no objections to the Magistrate Judge's account of the factual and procedural background. Accordingly, those portions of the Report and Recommendation, at pages 2-7, are incorporated into this opinion and adopted without objection.

         The Petitioner agrees there are no issues regarding procedural default or exhaustion presented. His first objection to the Report and Recommendation takes issue with the standard of review as he contests the constitutionality of the AEDPA. His second and third objections take issue with the Magistrate Judge's findings of no prejudice as to his first and second claim for relief. I address each objection in turn.

         A. Constitutionality of the AEDPA

         In Petitioner's objection to the constitutionality of the AEDPA, he contends it “improperly and unconstitutionally restricts a federal court's ability to remedy federal Constitutional violations.” (Doc. No. 13, p. 6). I disagree.

         While the Sixth Circuit has yet to address this precise question, other circuits have rejected arguments challenging the AEDPA's constitutionality. See Cobb v. Thaler, 682 F.3d 364, 374 (5th Cir. 2012) (finding § 2254 properly limits the basis on which to grant a habeas petition); Bonomelli v. Dinwiddie, 399 Fed.Appx. 384, 387 (10th Cir. 2010) (affirming the district court which rejected petitioner's argument that the AEDPA violated the separation of powers doctrine); Evans v. Thompson, 518 F.3d 1, 11 (1st Cir. 2008) (finding the AEDPA did not violate Article III powers); Crater v. Galaza, 491 F.3d 1119, 1127 (9th Cir. 2007) (no violation of separation of powers under § 2254).

         The cases relied on by Petitioner are based on dissenting opinions or are distinguishable. District courts within the Sixth Circuit have consistently upheld the constitutionality of the AEDPA. See Byrd v. Trombley, 580 F.Supp.2d 542, 550-54 (E.D. Mich. 2008); Mitchell v. Maclaren, No. 1:15-cv-10356, 2017 WL 4819104 at *17 (E.D. Mich. 2017); Thompson v. Parker, No. 5:11CV-21-R, 2012 WL 6201203 at *6 (W.D. Ky. 2012); Andera v. Tibbals, No. 1:11 CV 2606, 2012 WL 4955290 at *1 (N.D. Ohio 2012); Wang v. Sampson, No. 08-cv-10832, 2010 WL 4340536 at *2 (E.D. Mich. 2010); Phelps v. Berghuis, No. 08-12833, 2011 WL 2693353 at *4 (E.D. Mich. 2011).

         As there is authority to support the application of the AEDPA and no decision by the Sixth Circuit to the contrary, the Petitioner's objection as to the constitutionality of the AEDPA is overruled.

         B. Lack of Prejudice as to the First Ground for Relief

         In his First Ground for relief, Petitioner contends:

Ground One: Appellate counsel was ineffective under the Sixth and Fourteenth Amendments of the federal Constitution when he failed to raise the effectiveness of trial counsel for failing to request a “defense of another” jury instruction as warranted by Ohio law.

(Doc. No. 1 at p. 16). The Magistrate Judge found this claim to be without merit as the double layer of deference under the AEDPA applied and the Petitioner could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984). The Magistrate Judge also found the determinations by the state courts were not ...

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