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Lundy v. Turner

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

May 23, 2018

MICHAEL LUNDY, Petitioner,
v.
NEIL TURNER, Warden, Respondent.

          MEMORANDUM OF OPINION

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         This 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.

         FACTS

         The 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.

         On 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.

         Petitioner 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.

         Petitioner 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 the jury.

         Under 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 those findings.”

         Therefore, the Court will accept the recommendation of the Magistrate Judge to dismiss Grounds Two, Three and Four and review Ground One on the merits.

         STANDARD OF REVIEW

         When a 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.

         Pursuant 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 ...

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