United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation (“R &
R”) of Magistrate Judge Thomas M. Parker in the
above-entitled action, Doc #: 16. The
Magistrate Judge recommends the Court dismiss Petitioner
Damarcus Nicholson's 28 U.S.C. § 2254 Petition for
Writ of Habeas Corpus by a person in State Custody, Doc #: 1,
because Ground One lacks merit and Ground Two is procedurally
defaulted. Nicholson timely filed objections to Magistrate
Judge Parker's R & R. Doc #: 18.
asserts that the Magistrate Judge errored with regards to
Ground One of his Petition for Writ of Habeas Corpus in
finding: (A) that Nicholson's petition is subject to
AEDPA deferential review and (B) that Nicholson's
appellate counsel was not ineffective. Doc #: 18.
Standard of Review
argument that his claim deserved de novo or modified review
was fully addressed by the Magistrate Judge. The Federal
Magistrates Act requires a district court to conduct a de
novo review of those portions of the R & R to which an
objection has been made. 28 U.S.C. § 636(b)(1). However,
an Objection to an R & R is not meant to be simply a
vehicle to rehash arguments set forth in the petition, and
the Court is under no obligation to review de novo objections
that are merely an attempt to have the district court
reexamine the same arguments set forth in the petition and
briefs. Roberts v. Warden, Toledo Correctional
Inst., No. 1:08-CV-00113, 2010 U.S. Dist. LEXIS 70683,
at *22, 2010 WL 2794246, at *7 (S.D. Ohio Jul. 14, 2010)
(citation omitted); see Sackall v. Heckler, 104
F.R.D. 401, 402 (D.R.I. 1984) (“These rules serve a
clear and sensible purpose: if the magistrate system is to be
effective, and if profligate wasting of judicial resources is
to be avoided, the district court should be spared the chore
of traversing ground already plowed by the magistrate . . .
.”); O'Brien v. Colvin, No. CIV.A.
12-6690, 2014 WL 4632222, at *3, 2014 U.S. Dist. LEXIS
129179, at *7-8 (E.D. Pa. Sept. 16, 2014); Howard v.
Sec'y of Health & Human Servs., 932 F.2d 505,
509 (6th Cir. 1991) (“A general objection to the
entirety of the magistrate's report has the same effects
as would a failure to object. The district court's
attention is not focused on any specific issues for review,
thereby making the initial reference to the magistrate
useless. The functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrates Act.”). The
Court need not afford de novo review to objections which
merely rehash arguments presented to and considered by the
magistrate judge. Thus, the Court overrules Nicholson's
objections regarding the standard of review.
Ineffective Appellate Counsel
argues that even under AEDPA deferential review, the
Magistrate Judge errored in finding that his appellate
counsel was not ineffective. Doc #: 18 at 2-6 Counsel is
ineffective when the “counsel's performance was
deficient and  the deficient performance prejudiced the
defense so as to render the trial unfair and the result
unreliable.” Mates v. Tate, 338 F.3d 187, 191
(6th Cir. 2004) (citing Strickland v.
Washington, 446 U.S., 668, 687 (1984)).
the Magistrate Judge finding otherwise, Nicholson argues that
that the text messages were testimonial and hearsay; thus,
the argument that their admission violated the Confrontation
Clause was viable and should have been raised on appeal. Doc
#: 18 at 2-4. He further asserts that the Magistrate Judge
determined that the appellate counsel was not ineffective
through a misapplication of the test in Mapes v.
Tate, 388 F.3d 187 (6th Cir. 2004). Doc #: 18 at 5-6.
argues that his Confrontation Clause claim was viable on
appeal because the text messages were: (a) testimonial and
support of the argument that the text messages were
testimonial statements, he cites three cases not mentioned in
his traverse and not considered by the Magistrate Judge
--Bullcoming v. New Mexico, 564 U.S. 647 (2011);
Davis v. Washington, 547 U.S. 813 (2006); and
United States v. Allen, 716 Fed.Appx. 447 (6th Cir.
2017). Doc #: 18 at 2-4.
cases do not contradict the Magistrate Judge's
well-reasoned conclusion that the text messages were not
testimonial statements. Doc #: 16 at 13. Bullcoming
decided that the introduction of a forensic laboratory report
containing testimonial statements violates the Confrontation
Clause when the analyst who created the report does not
testify. Bullcoming, 564 U.S. at 652. Davis
clarified what a testimonial statement is, finding that
statements made to the police that were not a cry for help or
the provision of information enabling officers to immediately
end a threatening situation are testimonial. Davis,
547 U.S. at 831. Neither of these cases change the fact that
casual remarks to acquaintances are not testimonial