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Hewitt v. Bracy

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

July 31, 2019




         Before the Court is the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. No. 10 [“R&R”]) recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Pro se petitioner Michael Andrew Hewitt (“Hewitt”) filed objections to the R&R. (Doc. No. 12 [“Obj.”].)

         In accordance with 28 U.S.C. § 636(b)(1) and United States v. Curtis, 237 F.3d 598, 602- 03 (6th Cir. 2001), this Court has made a de novo determination of the magistrate judge's R&R. For the reasons stated below, the Court overrules Hewitt's objections, adopts the R&R, and dismisses Hewitt's petition for a writ of habeas corpus.

         I. Background

         Hewitt filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 16, 2016. (Doc. No. 1 [“Pet.”].) Hewitt seeks relief from the sentence issued by the state trial court following a jury trial in which the jury returned a guilty verdict against Hewitt for murder, in violation of Ohio Rev. Code § 2903.02(A), along with a firearm specification. The magistrate judge summarized the factual predicate for this offense, as determined by the state appellate court, as well as Hewitt's efforts to appeal his conviction in the state courts. Hewitt does not challenge the accuracy of the magistrate judge's summary of the procedural history and state appellate court's fact-findings. (R&R at 1118-29[1].) Because the summary accurately reflects the factual and procedural posture of the case, the Court will accept the magistrate's summary, as if rewritten herein. (See id.)

         Hewitt raised four grounds for relief in his habeas petition. In the R&R, the magistrate judge recommended that the Court reject the first ground as procedurally defaulted. (R&R at 1140-42.) The magistrate judge reached the merits of the remaining claims. In Hewitt's second ground-involving the admission of evidence relating to a criminal damaging incident involving Hewitt and the victim's roommate-the magistrate judge determined that the state appellate court reasonably determined that this prior incident was admissible under Ohio R. Civ. P. 404(b) as it set the stage for the charged homicide. (Id. at 1150.) The magistrate judge found that Hewitt's third ground-relating to the state court's determination that Hewitt's non-verbal response to a detective's suggestion that he would perform a test for gunshot residue was not obtained during an interrogation-did not represent an unreasonable application of clearly established federal law. (Id. at 1158-60.) The magistrate judge recommended that the Court reject Hewitt's fourth ground because it was not objectively unreasonable for the state appellate court to find that a rational juror could have determined beyond a reasonable doubt that Hewitt purposefully caused the victim's death. (Id. at 1168-69.)

         Hewitt filed timely objections to the R&R.

         II. Standard of Review

         Under 28 U.S.C. § 636(b)(1), “[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.” See Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo review by the district court in light of specific objections filed by any party.”) (citations omitted). “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. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); L.R. 72.3(b) (any objecting party shall file “written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections”). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         When undertaking its de novo review of any objections to the R&R, this Court must be additionally mindful of the standard of review applicable in the context of habeas corpus. “Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a federal court may grant habeas relief only when a state court's decision on the merits was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' decisions from [the Supreme] Court, or was ‘based on an unreasonable determination of the facts.' 28 U.S.C. § 2254(d).” Woods v. Donald, -- U.S.--, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam). This standard is “intentionally difficult to meet.” Id. (internal quotation marks and citations omitted). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2001)).

         III. Petitioner's Objections

         A. Procedural Default

         By his first objection, Hewitt objects to the magistrate judge's finding that his first ground for relief-relating to the trial admission of photographs from Hewitt's phone-was procedurally defaulted.[2] It is well settled that a state prisoner cannot receive federal habeas review of a claim that has been procedurally defaulted. See Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citing among authority Wainwright v. Sykes, 433 U.S. 72, 80, 84-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Hewitt challenged the admission of the photographs on direct appeal and before the Ohio Supreme Court. But because he failed to preserve the issue in the trial court, the court of appeals applied a plain error analysis.

         While Hewitt attempts to reach the merits of this ground, the fact remains that the claim was procedurally defaulted. (See Obj. at 1176-77.) The magistrate judge correctly observed that Ohio's contemporaneous objection rule, which requires that an objection to the introduction of evidence be lodged at trial to preserve the issue for appeal, is an adequate and independent state ground barring federal habeas review. See Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005). Moreover, the fact that the state court of appeals reviewed Hewitt's challenge to the ...

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