United States District Court, S.D. Ohio, Western Division, Dayton
M. ROSE DISTRICT JUDGE
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
habeas corpus case brought, pro se by Petitioner
Joshua Verdell, is before the Court on Verdell's
Objections (ECF No. 3) to the Magistrate Judge's Report
and Recommendations recommending the case be dismissed (the
“Report, ” ECF No. 2). Judge Rose has recommitted
the case to the Magistrate Judge for reconsideration in light
of the Objections (ECF No. 4).
Objections to the Report are all procedural.
of all, he objects to the Magistrate Judge's analysis of
the Petition under Rule 4 of the Rules Governing § 2254
Cases (the “Habeas Rules”). He argues Rule 4 is
analogous to Fed.R.Civ.P. 12(b)(6) and “dismissal is
only warranted if it appears ‘beyond doubt that the
[petitioner] can prove no set of facts in support of his
claim which would entitled him to relief.'”
(Objections, ECF No. 3, page 1 of 2, citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
has been expressly overruled. Bell Atl. Corp. v.
Twombly, 550 U.S.544, 558 (2007). But by its own terms,
Conley applied only to cases governed by the Federal
Rules of Civil Procedure. Those Rules apply to habeas corpus
cases only to the extent that the Habeas Rules do not make
specific provision. Habeas Rule 12. Habeas Rule 4 requires a
district court to determine whether the petition shows a
petitioner is not entitled to relief.
present, when so many courts make their decisions available
on the Internet, a habeas court is able to consider, in many
cases, what decisions the state courts made on a
petitioner's claims. When those claims have been fairly
presented to the state courts and decided on the merits, a
federal district court can evaluate the objective
reasonableness of those decisions without requiring the
production of the entire state court record.
what happened here. Verdell's Fifth Amendment claims
under Miranda v. Arizona, 384 U.S. 436 (1966), were
presented to and decided by the Ohio Second District Court of
Appeals. State v. Verdell, 2nd Dist.
Montgomery No. 27786, 2018-Ohio-4766, ¶ 2 (Nov. 30,
2018), appellate jurisdiction declined, 154 Ohio St.3d 1522,
2019-Ohio-769. On the other hand, Verdell's Confrontation
Clause claim was not presented on direct appeal and was also
without merit and thus recommended for dismissal (Report, ECF
No. 2, page 15 of 16).
asserts that “the inartfulness of the petition cannot
serve as a catalysis [sic] for invidious discrimination and
dismissal, ” (Objections, ECF No. 3, page 2 or 2,
citing Haines v. Kerner, 404 U.S. 519 (1972). But
the Report does not recommend dismissal on any such basis,
but reaches the merits of Verdell's claims. Every habeas
petitioner, whether represented by counsel or not, has his or
her petition scrutinized under Rule 4, so there is not basis
for a claim of “invidious discrimination.”
does not respond at all to the substance of the Report;
rather he asserts “the pleadings have not ripened for
adjudication” and review at this point is
“premature.” Id. On the contrary, Rule 4
commands that such review take place before the Respondent is
ordered to answer. Verdell also objects that “[t]hee
[sic] Magistrate also assumes defense for thee [sic]
Respondent not yet plead, nor privileged under some
immunity.” Id. It is true that the Magistrate
Judge has raised sua sponte the defense of
procedural default as to Ground Two. However, the Sixth
Circuit has expressly approved raising this defense sua
sponte. Sowell v. Bradshaw, 372 F.3d 821, 830
(6th Cir. 2004); Lorraine v. Coyle, 291
F.3d 416 (6th Cir. 2002)(§ 2254 capital
case); White v. Mitchell, 431 F.3d 517, 514
(6th Cir. 2005)(capital case); Elzy v. United
States, 205 F.3d 882 (6th Cir. 2000)(§
objections are without merit and should be overruled. Because
reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability
and the Court should certify to the Sixth Circuit that any
appeal would be objectively frivolous and therefore should
not be permitted to proceed in forma pauperis.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. Such objections shall specify
the portions ...