United States District Court, N.D. Ohio, Eastern Division
KERMIT B. HARRIS, Petitioner,
WARDEN CHARMAINE BRACY, Respondent.
ORDER AND DECISION
R. ADAMS UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Kermit B.
Harris' objections to the Magistrate's Report and
Recommendation (“R&R”) filed May 11, 2018.
For the following reasons, Harris' objections are
OVERRULED. This Court ADOPTS the R&R of the Magistrate
Judge and DISMISSES Harris' Petition for Habeas Corpus
filed pursuant to 28 U.S.C. § 2254.
R&R adequately states the factual and procedural
background of the case. (Doc. 12, p. 1-2.) Harris has not
demonstrated any error in the background as set forth by the
Magistrate. Therefore, the Court will not reiterate that
STANDARD OF REVIEW
party files written objections to a magistrate judge's
report and recommendation, a judge must perform a de
novo review of “those portions of the report or
specified proposed findings recommendations to which
objection is made. A judge of the court may accept, reject,
or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C).
LAW AND ANALYSIS
filed the instant habeas petition on October 5, 2017, setting
forth three grounds for relief. It is Harris' third
petition challenging his 1997 conviction, following petitions
filed by him in 2001 and 2010. The Magistrate found that the
instant petition is a successive habeas petition, and should
be dismissed because Harris filed it without first obtaining
permission from the Sixth Circuit as required by 28 U.S.C.
objections, Harris contends that his habeas petition is not
successive because it challenges a new judgment imposed on
resentencing. Specifically, Harris states that, through
counsel, he filed a motion for resentencing in the state
trial court on March 23, 2015. Harris relies on Magwood
v. Patterson, 561 U.S. 320, 331 (2010) in support of his
argument that his petition is not successive.
Court agrees with the Magistrate that Harris' argument
lacks merit. Indeed, Harris' 2015 motion for resentencing
was denied on the merits, and was also determined to be
barred by res judicata. As the Magistrate explained,
this does not constitute a resentencing as contemplated by
Magwood. See 561 U.S. at 331-34. The state
court did not grant Harris' motion for resentencing and
therefore did not resentence Harris. As the Magistrate
explained, Harris' construction of the law is
nonsensical, because according to him, a petitioner could
continuously refresh the ability to properly file a habeas
petition by simply filing a motion for resentencing in the
state court and then waiting for the motion to be
denied.” (Doc. 12, p. 5.)
Harris' instant habeas petition does not bring any claims
that could not have been brought in an earlier petition.
See Banks v. Bunting, No. 5:13CV111472, 2013 WL
6579036, at *6 (N.D. Ohio, Dec. 13, 2013). Thus, Harris has
not stated any grounds that would establish that his current
petition is not successive petition.
a successive habeas petition, 28 U.S.C. § 2244(b)(3)(A)
Before a second or successive application permitted in this
section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order
authorizing the district court to consider the application.
has not moved the Sixth Circuit for an order authorizing this
Court to consider his habeas petition.
the Court notes that Harris' “objections” to
the R&R are a repetition of the underlying argument to
this Court in the original petition. “An
‘objection' that does nothing more than state a
disagreement with a magistrate's suggested resolution, or
simply summarizes what has been presented before, is not an
‘objection' as that term is used in this
context.” Aldrich v. Block, 327 F.Supp.2d 743,
747 (E.D. Mich. 2004). Given this, and for ...