United States District Court, N.D. Ohio, Western Division
JEFFREY J. HELMICK UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
Constitutionality of the AEDPA
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.
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).
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).
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.
of Prejudice as to the First Ground for Relief
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 ...