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McIntire v. Miller

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

July 29, 2019

Norvell T. McIntire, Petitioner,
v.
Michelle Miller, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          JEFFREY J. HELMICK, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Petitioner Norvell T. McIntire[1], acting pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254, related to his 2013 convictions on charges of rape, gross sexual imposition, importuning, attempted gross sexual imposition, and public indecency in the Huron County, Ohio Court of Common Pleas. (Doc. No. 1). Magistrate Judge David A. Ruiz reviewed the petition as well as the related briefing pursuant to Local Rule 72.2(b)(2) and recommends I deny the petition. (Doc. No. 15). McIntire has filed objections to Judge Ruiz's Report and Recommendation. (Doc. No. 16). McIntire also has filed motions for appointment of counsel, (Doc. No. 17), a declaration of indigency, (Doc. No. 18), and for an evidentiary hearing, (Doc. No. 19). For the reasons stated below, I overrule McIntire's objections, deny his motions, and adopt Judge Ruiz's Report and Recommendation.

         II. Background

         On May 2, 2013, a Huron County jury returned guilty verdicts against McIntire for rape, gross sexual imposition, importuning, attempted gross sexual imposition, and public indecency. McIntire was acquitted of two other counts of importuning following a bench trial. He was sentenced to a total of twelve years in prison.

         McIntire does not object to Judge Ruiz's recitation of the factual and procedural history of this case. I adopt those sections of the Report and Recommendation in full. (Doc. No. 15 at 1-7).

         III. Standard

         Once a magistrate judge has filed a report and recommendation, a party to the litigation may “serve and file written objections” to the magistrate judge's proposed findings and recommendations, within 14 days of being served with a copy. 28 U.S.C. § 636. Written objections “provide the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately . . . [and] to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” Kelly v. Withrow, 25 F.3d 363, 365 (6th Cir. 1994) (quoting United States v. Walters, 638 F.3d 947, 949-50 (6th Cir. 1981) and Thomas v. Arn, 474 U.S. 140, 147 (1985)). A district court must conduct a de novo review only of the portions of the magistrate judge's findings and recommendations to which a party has made a specific objection. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

         IV. Discussion

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) prohibits the issuance of a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(1).

         McIntire asserts ten ...


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