United States District Court, N.D. Ohio, Eastern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
AARON POLSTER, UNITED STATES DISTRICT JUDGE.
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.
August 10, 2016, Crank filed his Petition pursuant to 28
U.S.C. § 2254. Doc #: 1. He filed an Amended
Petition, 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.
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
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.
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.
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.
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 ...