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Gregory v. Sheldon

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

August 8, 2019

DAVID A. GREGORY, JR., PETITIONER,
v.
EDWARD SHELDON, Warden, RESPONDENT.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of Magistrate Judge George J. Limbert (Doc. No. 13 [“R&R”]) recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Pro se petitioner David A. Gregory, Jr. (“Gregory”) filed objections to the R&R. (Doc. No. 15 [“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 Gregory's objections, adopts the R&R[1], and dismisses Gregory's petition for a writ of habeas corpus.

         I. Background

         Gregory filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 24, 2017, 2016. (Doc. No. 1 [“Pet.”].) Gregory seeks relief from the sentence issued by the state trial court following a jury trial in which the jury returned guilty verdicts against Gregory for illegal assembly or possession of chemicals for the manufacturer of drugs and attempted prohibitions concerning pseudoephedrine products. The magistrate judge summarized the factual predicate for these offenses, as determined by the state appellate court, as well as Gregory's efforts to appeal his convictions in the state courts. (R&R at 569-74.) Gregory does not challenge the accuracy of the magistrate judge's summary of the procedural history and state appellate court's fact-findings. 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.)

         Gregory raised eight grounds for relief in his habeas petition. The R&R recommended a finding that the first seven grounds are procedurally defaulted.[2] (R&R at 578-84.) The eighth ground purported to raise a stand-alone actual innocence claim based on what Gregory represented was newly discovered evidence. In support of this claim, Gregory offered his own affidavit, and the affidavit of a second witness, challenging the trial testimony of one of the state's witnesses. (Doc. No. 1-1 (Affidavit of Jennifer Penrod [“Penrod Aff.”]); Doc. No. 1-3 (Affidavit of David A. Gregory, Jr. [“Gregory Aff.”]).) The magistrate judge determined that the asserted ground was not cognizable on federal habeas review. (Id. at 584-86.) To the extent's that this actual innocence claim was being offered to revive the first seven procedurally barred grounds, the magistrate judge recommended that the Court find that this evidence failed to satisfy the demanding standard of showing that Gregory was actually innocent of the charges. (Id. at 586-87.)

         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

         Though titled “Objection to the Report and Recommendation of Magistrate Judge, ” Gregory does not identify any objection he has to the R&R, or for that matter, even mention the R&R in the body of his memorandum. (Obj. at 592, capitalization omitted.) Rather, much of the filing is devoted to a review of the factual and procedural background of the case and Gregory's conclusion that he “was not treated fairly at all” in the state court. (Id. at 596.) In essence, Gregory simply invites the Court to re-weigh the evidence offered at trial in state court, resolve any and all contradictions anew, and arrive at a conclusion contrary to the jury and the state appellate court. (See id. [“The Court should take into consideration the lies/inconsistencies in this case and reverse Mr. Gregory's convictions.”) The Court declines the invitation because such an exercise would not be appropriate on federal habeas review. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (A federal habeas court does not reweigh the evidence adduced at trial, nor judge anew the credibility of witnesses. If there are conflicts of evidence or conflicting inferences arising from the facts, the court must presume that the trier of fact resolved those conflicts in favor of the state and defer to that decision).

         Even affording Gregory's filing a liberal interpretation that is appropriate for pro se filings, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the vast majority of the document cannot be interpreted as raising legitimate objections to the R&R. See Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006) (“[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in error are too general.”) (quotation marks and citation omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

         The only argument that even touches upon the magistrate judge's threshold finding that Gregory's cognizable claims are procedural defaulted is his argument that the State's witness- Frank Boychi-was incredible. (Obj. at 596 [“Mr. Boychi is clearly a liar and was caught lying to law enforcement. Mr. Boychi lied on Mr. Gregory in order to escape from being in as much trouble that was previously in. He is to be seen as ‘not credible' and his testimony should not have been believed at all!”], punctuation in original.) While Gregory did attempt to set forth a stand-alone claim of actual innocence, the Court will generously construe these remarks, as well as the affidavits he offers in support of his petition, as also attempting to overcome his procedural default.

         Generally, a federal court will not review a procedurally defaulted claim on habeas corpus review “[o]ut of respect for finality, comity, and the orderly administration of justice[.]” Dretke v. Haley, 541 U.S. 386, 388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). “This is a corollary to the rule that ‘federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.'” Nelloms v. Jackson, 129 Fed.Appx. 933, 937 (6th Cir. 2005) (quoting Dretke, 541 U.S. at 392)). “The only exceptions to this rule are when a state prisoner can demonstrate cause for the procedural default and prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to review the constitutional claim will result in a fundamental miscarriage of ...


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