United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Michael
Lundy's Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF #1). For the
following reasons, the Court accepts and adopts the
Magistrate Judge's Report and Recommendation and
dismisses Petitioner's Petition.
following is a factual synopsis of Petitioner's claims.
The Magistrate Judge's Report and Recommendation, adopted
and incorporated, provides a more complete and detailed
discussion of the facts.
August 16, 2012, the Allen County Grand Jury indicted
Petitioner on two counts of Rape, one count of Kidnapping and
one count of Aggravated Burglary. The case proceeded to a
jury trial on August 6, 2013. On August 9, 2013, the jury
found Petitioner guilty of all charges. On September 9, 2013,
the trial court sentenced Petitioner to an aggregate sentence
of forty years in prison.
filed an Appeal to the Third District Court of Appeals. On
November 10, 2014, the Court of Appeals affirmed the trial
court's Judgment. Petitioner appealed to the Ohio Supreme
Court. The Ohio Supreme Court declined jurisdiction over the
Appeal on April 29, 2015. Petitioner filed a Motion for
Reconsideration on May 6, 2015, which the court denied. On
January 30, 2015, Petitioner filed an Application to Reopen
his direct appeal pursuant to Rule 26(B) of the Ohio Rules of
Appellate Procedure. On March 17, 2015, the Court of Appeals
denied the Application. Petitioner filed a Notice of Appeal
of the appellate court's Judgment to the Ohio Supreme
Court. The Court declined jurisdiction over the Appeal on
July 8, 2015.
filed the instant Petition on July 6, 2016, asserting four
grounds for relief. On July 7, 2016, the Court referred
Petitioner's Petition to the Magistrate Judge for a
Report and Recommendation. The Magistrate Judge issued his
Report and Recommendation on April 18, 2018. Petitioner filed
Objections to Report and Recommendation on April 19, 2018,
accepting the recommendation of the Magistrate Judge for
Grounds Two, Three and Four, but challenging the
recommendation for Ground One:
GROUND ONE: The trial court
committed error in not granting Lundy's challenge to the
preemptory[sic] strike of an African[-]American female from
Federal Rule 72(b) and 28 U.S.C. § 636, the district
court is required to review de novo any portion of the
Magistrate Judge's Report to which a specific objection
is made. A party who fails to file an objection waives the
right to appeal. U.S. v. Walters, 638 F.2d 947, 950
(6th Cir. 1981). In Thomas v. Arn, 474 U.S. 140, 150
(1985), the Supreme Court held: “It does not appear
that Congress intended to require district court review of a
magistrate judge's factual or legal conclusions, under a
de novo or any other standard, when neither party objects to
the Court will accept the recommendation of the Magistrate
Judge to dismiss Grounds Two, Three and Four and review
Ground One on the merits.
federal habeas claim has been adjudicated by the state
courts, 28 U.S.C. § 2254(d)(1) provides the writ shall
not issue unless the state decision “was contrary to,
or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of
the United States.” Further, a federal court may grant
habeas relief if the state court arrives at a decision
opposite to that reached by the Supreme Court of the United
States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of
materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-406 (2000). The appropriate
measure of whether or not a state court decision unreasonably
applied clearly established federal law is whether that state
adjudication was “objectively unreasonable” and
not merely erroneous or incorrect. Williams, 529
U.S. at 409-411.
to 28 U.S.C. § 2254(e)(1), findings of fact made by the
state court are presumed correct, rebuttable only by clear
and convincing evidence to the contrary. McAdoo v.
Elo, 365 F.3d 487, 493-494 (6th Cir. 2004). Finally,
Rule 8(b)(4) of the Rules Governing §2254 states:
A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify in
whole or in part ...