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Crank v. Bracy

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

May 8, 2018

CHESTER RAY CRANK, Petitioner,
v.
CHARMAINE BRACY, Warden, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE.

         Before the Court is the Report and Recommendation of Magistrate Judge Kathleen B. Burke (“R&R”), Doc #: 29, and Petitioner Chester Ray Crank's Objections to the Magistrate Judge's Report & Recommendation (“Objections”), Doc #: 32. For the reasons below, the R&R is adopted in full.

         I. Procedural History

         On August 10, 2016, Crank filed his Petition pursuant to 28 U.S.C. § 2254. Doc #: 1. He filed an Amended Petition[1], with leave of Court, on August 17, 2017. Doc #: 24. In his Petition, Crank raised eight grounds for relief. Respondent filed a Return of Writ on March 10, 2017, Doc #: 10, and a Supplemental Return of Writ on October 2, 2017, Doc #: 25. On November 3, 2017, Crank filed his Traverse. Doc #: 26. Respondent filed her Reply on January 31, 2018. Doc #: 28. Magistrate Judge Burke issued her R&R on March 12, 2018, recommending that the Court deny Crank's Petition on all grounds. Doc #: 29. Crank filed a motion for extension of time to file his objections, Doc #: 30, which the Court granted in part. 3/26/2018 Order [Non-Document]. The Court granted Crank an additional extension of time to file his objections in response to his Motion for Reconsideration, Doc #: 31. 4/3/2018 Order [Non-Document]. Crank filed his Objections on April 23, 2018. Doc #: 32.

         II. Legal Standard

         After a report and recommendation has been issued, the district court reviews de novo “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “A general objection, or one that merely restates the arguments previously presented is not sufficient to alert the court to alleged errors on the part of the magistrate judge.” VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004). A plaintiff waives his right to review of the remaining portions of a report and recommendation to which he did not specifically object. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.2005); Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985) (“It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”)

         III. Discussion

         At the outset, Crank objects to Magistrate Judge Burke “remaining on his case.” This objection is moot because the case is no longer referred to Magistrate Judge Burke and is now fully before the Court. Additionally, Crank objects to Magistrate Judge Burke's recommendations on each of his eight grounds for relief. The Court will only address arguments that Crank did not previously make in his Petition or Traverse. Crank's objections to Magistrate Judge Burke's recommendations on Grounds One, Four, and Six are recitations of his previous arguments. Thus, the Court will not address these objections and overrules them.

         A. Ground Two

         Crank makes a sufficiency of the evidence argument for his second ground for relief. Crank's Objections make one new argument: that Magistrate Judge Burke did not use the appropriate standard of review for a habeas court reviewing a claim of insufficiency of evidence in a state criminal proceeding. Mot. 9. He argues that the appropriate standard is to review all the evidence not just, as the R&R states, “view[] the evidence in light most favorable to the prosecution.” Id. He cites Alder v. Burt, 240 F.Supp.2d 651 (E.D. Mich. 2003) in support. Id. But Alder recites the same standard as the R&R. See Alder, 240 F.Supp. at 662 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (explaining that a reviewing court should “consider[] the evidence in the light most favorable to the prosecution[.]”). The Court finds that Magistrate Judge Burke properly stated the law. Crank's Objections on Ground Two are overruled.

         B. Ground Three

         Crank objects to Magistrate Judge Burke's recommendation on Ground Three because it is “erroneous and fails to take into consideration the proper standard of law.” Mot. 11. The Court disagrees. The Ohio Court of Appeals reviewed Detective George's testimony and found that the trial court's error was harmless. R&R 27. The R&R properly states the standard of law under which a reviewing court must consider a state court's harmless error determination of a constitutional trial error. Id. Thus, Crank's Objections to Ground Three are overruled.

         C. Ground Five

         Crank next argues that he did not receive a fair trial due to the cumulative errors that occurred during trial, as set forth in Grounds Three and Four. Pet. 10. Magistrate Judge Burke recommended that the Court deny relief under Ground Five because “cumulative error is not a cognizable claim for federal habeas relief in this circuit.” R&R 32 (citing Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006). Crank objects to Magistrate Judge Burke's recommendation, arguing that the R&R misstates the law. Obj. 13. He cites Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) as the “clearest contradiction” to the R&R. Id. However, Parle is a Ninth Circuit case and is not controlling authority in this circuit. The R&R correctly ...


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