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Babos v. Welsh

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

May 7, 2018

Eric Babos, Petitioner,
v.
Robert Welsh, Warden, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JACK ZOUHARY U.S. DISTRICT JUDGE.

         Introduction

         Petitioner Eric Babos, a state prisoner, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). After this case was reactivated in January 2016, Babos filed an Amended Petition (Doc. 33). The case was referred to Magistrate Judge James Knepp for a Report and Recommendation (R&R). Respondent Robert Welsh moved to dismiss the Amended Petition as untimely (Doc. 36). After additional briefing (Docs. 38, 42, 45, 47), the Magistrate Judge recommended this Court grant the Motion to Dismiss. Babos timely objected (Doc. 51). Accordingly, this Court has reviewed de novo those portions of the R&R challenged in the Objection. 28 U.S.C. § 636(b)(1)(B) & (C); Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir. 1981).

         Background

         As Babos does not meaningfully object to the procedural history and facts set forth in the R&R (Doc. 48 at 1-14), this Court incorporates them by reference and briefly summarizes the timeline of Babos' state court appeals and federal habeas proceedings.

         On August 5, 2005, an Ohio jury found Babos guilty of murdering John Riebe. Babos moved for a new trial, but the motion was denied. He was then sentenced to eighteen years to life in prison. He appealed. While his direct appeal was pending, Babos filed a second motion for a new trial. After a hearing, that motion too was denied. He appealed the trial court's denial, and the appeal was consolidated with his direct appeal (id. at 3-5). In the consolidated appeal, Babos asserted a single assignment of error: the trial court erred in denying his motion for a new trial. The appellate court affirmed the trial court decision in May 2007, and the Ohio Supreme Court denied leave to appeal in December 2007 (id. at 5-6).

         While his consolidated appeals were pending with the Ohio Supreme Court, Babos filed an application to reopen his direct appeal, arguing his appellate counsel was ineffective. In August 2007, the application was denied. Babos did not appeal to the Ohio Supreme Court (id. at 9-10).

         Babos also filed a pro se motion for relief from judgment while his consolidated appeals were pending. He raised several arguments, including that his constitutional rights were violated when he was convicted against the weight of the evidence and that the State failed to disclose evidence. The trial court denied the motion in June 2007. The appellate court affirmed. The Ohio Supreme Court denied leave to appeal in June 2008 (id. at 6-9).

         In April 2009, Babos timely filed a Petition for Writ of Habeas Corpus with this Court (Doc. 1). In February 2010, Babos filed a Motion to Hold Proceedings in Abeyance while he returned to state court to exhaust his claims (Doc. 27). The Motion cited to Rhines v. Weber, 544 U.S. 269 (2005), and provided that Babos would “notify this court within thirty days of the exhaustion of his state claims” (Doc. 27 at 6-7). The Motion was marginally granted in March 2010 (Doc. 28). In December 2011, this Court entered an Order staying the case “pending the resolution of a related case pending in the state court of appeals” (Doc. 31). The Order instructed counsel to “advise the Court, by filing a Notice, when there has been a ruling by the state appellate court, at which time the Court will hold a status conference. In addition, counsel may reactivate this case at any time by filing a Request to Reactivate” (id.).

         After the case was stayed, Babos returned to state court and moved for leave to file a motion for a new trial and for post-conviction relief. He argued the State failed to disclose evidence; the jury heard faulty scientific testimony regarding gunshot residue; and new voice analysis expert evidence indicates there is a voice in the background of a voicemail Riebe left his estranged wife on the day of the murder, and it is not Babos. Both motions were denied. The appellate court affirmed. In September 2013, the Ohio Supreme Court declined jurisdiction (Doc. 48 at 11-13). Babos did not file a Notice with this Court as instructed, but instead waited for more than two years before filing a Request to Reactivate his case and for leave to file an Amended Petition (Doc 32).

         Discussion

         The Amended Petition asserts two grounds for relief: Brady violations and ineffective assistance of trial counsel (Doc. 33). The R&R recommends this Court grant the Motion to Dismiss the Amended Petition as time-barred, finding Babos failed to establish an actual innocence claim excusing his noncompliance with AEDPA. In his Objections, Babos makes several conclusory criticisms of the R&R as a whole. However, he does not offer any specific factual or legal basis for many of these statements. “A general objection to the entirety of the magistrate's report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the magistrate useless.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). “[V]ague, general, or conclusory objections” do not trigger this Court's de novo review. See Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001). Thus, this Court will address only Babos' specific objections.

         Ground One: Time Bar

         Babos concedes that his claims ultimately “rest upon an actual innocent finding” because he has procedurally defaulted several aspects of his claim (Doc. 51 at 8; see also Doc. 38 at 1-2, 17). Still, he objects to the finding that his claims are also time barred and that his delay in returning to federal court was unreasonable. Babos now argues that his Petition “was timely filed and never withdrawn” (Doc. 51 at 8). Without citing any legal authority, he asserts that even if his delay in moving to reactivate the case was unreasonable in a “non-actual innocence matter, ” “actual innocence cases are different” and Jurado v. Burt,337 ...


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