United States District Court, N.D. Ohio, Eastern Division
SOLOMON OLIVER, JR.UNITED STATES DISTRICT JUDGE
April 12, 2019, Petitioner Clarence Bogan
(“Petitioner” or “Bogan”) filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 in the above-captioned case, challenging a
retrial of his murder, felonious assault, and domestic
violence charges on the ground that retrial would violate the
Double Jeopardy Clause. (ECF No. 1.) The court referred the
case to Magistrate Judge David A. Ruiz (“Judge
Ruiz” or “Magistrate Judge”), pursuant to
Local Rule 72.2, on April 24, 2019, for preparation of a
Report and Recommendation (“R & R”). (ECF No.
7.) Judge Ruiz filed his R & R on October 10, 2019,
recommending that the court deny Bogan's habeas petition.
(ECF No. 28.) Bogan filed Objections to Judge Ruiz's R
& R. (ECF No. 29.) Respondents Rhonda Gibson and Clifford
Pinkney (collectively, “Respondents”) filed a
Response on October 28, 2019. (ECF No. 30.) Because the facts
of this case are fully discussed in Judge Ruiz's R &
R, this Order will only address Judge Ruiz's findings and
conclusions, and Bogan's Objections thereto.
jeopardy attaches, a second trial is prohibited unless
“(1) there is a ‘manifest necessity' for a
mistrial or (2) the defendant either requests or consents to
a mistrial.” Camp v. Berghuis, 601 Fed.
App'x 380, 383-84 (6th Cir. 2015) (internal citations
omitted). A defendant's consent to the declaration of a
mistrial need not be expressly stated. United States v.
Puleo, 817 F.2d 702, 705 (11th Cir. 1987). Instead,
consent can be implied based on the defendant's silence
after “an especially careful examination of the
totality of the circumstances that positively indicate this
silence was tantamount to consent.” United States
v. Williamson, 656 Fed.Appx. 175, 180 (6th Cir. 2016)
(internal citations and quotation marks omitted).
noting that there may have been a “manifest
necessity” for the trial court's declaration of the
mistrial in light of Bogan's repeated disruptive behavior
and general misconduct during the trial, Judge Ruiz's R
& R solely addressed the issue of whether Petitioner,
through his defense counsel, impliedly consented to the
mistrial. (R & R at PageID #2812, ECF No. 28.) In that
regard, Judge Ruiz concluded, based on the totality of the
circumstances, that defense counsel impliedly consented to
the mistrial. (Id. at PageID #2815.) In so finding,
Judge Ruiz considered, among other things: (1) defense
counsel's failure to object to the trial court's
declaration of the mistrial despite having a meaningful
opportunity to do so during the hearing; (2) defense
counsel's participation in rescheduling the trial and
asking for permission to obtain another expert for the
retrial immediately after the trial court declared the
mistrial; (3) the fact that defense counsel had repeatedly
moved for a mistrial throughout the trial, including just
prior to the conclusion of trial; (4) the fact that defense
counsel's argument that there was no time to object to
the trial court's declaration of the mistrial was not
supported by the record; (5) the fact that Bogan repeatedly
made inappropriate attempts to communicate with the jury
during trial; and (6) the fact that defense counsel raised no
double jeopardy concerns until the following day after the
court had discharged the jury. (Id. at PageID
does not raise any new arguments in his challenge to Judge
Ruiz's factual findings and legal conclusions. He merely
restates the arguments that he made in his § 2241
Petition and Omnibus Traverse, and asks the court to
disregard the R & R. (See Petition at PageID #9,
ECF No. 1; Omnibus Traverse at PageID #2725-30, ECF No. 17.)
In particular, Petitioner asserts that (1) defense counsel
did not implicitly consent to the trial court's
declaration of the mistrial, (2) defense counsel's
failure to object to the mistrial declaration did not imply
consent, and (3) defense counsel's earlier requests for a
mistrial did not demonstrate consent to the final mistrial
declaration. (Objection at PageID #2825-33, ECF No. 29.)
Nevertheless, an objection that summarizes what has already
been presented, or merely states a disagreement with a
magistrate's conclusions is not an objection. Aldrich
v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004).
court finds, after careful de novo review of the
Magistrate Judge's R & R and all other relevant
documents in the record, that Judge Ruiz's conclusions
are fully supported by the record and controlling case law.
See Cowherd v. Million, 380 F.3d 909, 912 (6th Cir.
2004). Accordingly, the court hereby adopts Judge Ruiz's
R & R (ECF No. 28) in its entirety and dismisses
Bogan's Petition for Writ of Habeas Corpus (ECF No. 1).
The court also certifies that, pursuant to 28 U.S.C. §
1915(a)(3), an appeal from this decision could not be taken