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Cedeno v. Gray

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

December 16, 2019

NOEL CEDENO, PETITIONER,
v.
DAVID W. GRAY, Warden, RESPONDENT.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE.

         Before the Court is the Report and Recommendation of Magistrate Judge Kathleen B. Burke (Doc. No. 14 [“R&R”]) recommending dismissal in part and denial in part of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Pro se petitioner Noel Cedeno (“Cedeno”) 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 Cedeno's objections, adopts the R&R in its entirety, and dismisses in part and denies in part Cedeno's petition for a writ of habeas corpus.

         I. Background

         On May 4, 2017, Cedeno filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1 [“Pet.”].) Cedeno seeks relief from the sentence issued by the state trial court following a bench trial of two consolidated criminal cases in which the court found Cedeno guilty of multiple state law sexually motivated crimes against children, including rape and kidnapping, with sexually violent predator specifications. In each case, Cedeno received a term of imprisonment of life without the possibility of parole, the second issued sentence to be served consecutive to the first. See State v. Cedeno, Nos. 102327, 102328, 2015 WL 9460555, at *1 (Ohio Ct. App. Dec. 24, 2015); (see R&R at 1475-76[1].) The magistrate judge summarized Cedeno's efforts to appeal his convictions in the state courts, and while Cedeno challenges the legal significance of certain procedural maneuvers and the reasons he did or did not pursue certain avenues for relief, he does not suggest that the magistrate judge erred factually in her recitation of the procedural history. Accordingly, the Court accepts the magistrate's summary, as if rewritten herein. (See id. at 1476-81.)

         Cedeno raised four grounds for review in his habeas petition. In the R&R, the magistrate judge recommended that two of the claims be dismissed on the basis that they were procedurally defaulted and that there was no excuse for the default. (Id. at 1497-1501.) She also found that one claim-relating to Cedeno's right to allocution-was not cognizable on federal habeas review. (Id. at 1497.) The magistrate judge reached the merits of the first claim-relating to the right to self-representation under the Sixth Amendment-but found that the state appellate court's disposition of that claim was neither contrary to or involved an unreasonable application of Supreme Court precedent, nor was based on an unreasonable determination of the facts. (Id. at 1486-97.) Cedeno 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. Cedeno's Objections

         Cedeno raises a number of general objections to the recommendations contained within the R&R, challenging the magistrate judge's recommended disposition “on all grounds presented in the petition.” (Obj. at 1506; see, e.g., id. [objecting generally to the magistrate judge's review on the merits of Cedeno's first ground for relief noting, “No overt objection, but an objection is raised”]). Such general objections are improper. Failure to present specific arguments is fatal at this junction, where objections must be specific in order to obtain de novo review and avoid waiver on appeal. Kelly v. Withrow, 25 F.3d 363, 365 (6th Cir. 1994) (the purpose of objections “is to provide the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately[, ]” as well as “to focus attention on those issues- factual and legal-that are at the heart of the parties' dispute”) (quotation marks and citations omitted). To the extent that Cedeno's objections simply represent his general disagreement with the magistrate judge's suggested resolution of the petition, or involve the rehashing of arguments raised in his traverse, the objections are OVERRULED.

         A. First Ground-Right to Self-Representation

         The magistrate judge reached the merits of Cedeno's first ground alleging a deprivation of the Sixth Amendment right to self-representation, finding that the state appellate court's ruling denying this claim on direct appeal was neither contrary to or involved an unreasonable application of clearly established federal law, nor was based on an unreasonable determination of the facts. (R&R at 1486-97.) Cedeno raises three objections to this recommended finding. First, relying on United States v. Williams, 641 F.3d 758, 766-67 (6th Cir. 2011), Cedeno once again argues that the trial court erred by not asking a particular set of questions when inquiring into his asserted interest in self-representation. (Obj. at 1507.) The magistrate judge found that the Sixth Circuit's decision in Williams is not binding on state courts, and Cedeno cites to no authority suggesting that the contrary is true. Further, while Cedeno disagrees with the state appellate court's determination that he was engaging in obstructionist behavior, he does not deny that he engaged in the conduct the state appellate court relied upon to support the trial court's decision to require Cedeno to proceed with counsel.[2]

         Second, Cedeno questions the magistrate judge's rejection of his argument that the trial court could have “insisted” that he be assigned standby counsel. (Obj. at 1507.) Specifically, he complains that the magistrate judge relied on a pro se motion Cedeno made at trial. (Id.) In his objection, Cedeno explains that by this pro se motion he was merely trying to make clear that he “wanted to unequivocally represent himself and to speak exclusively on his own behalf and without intervention of standby attorney, who could undermine his ability to proceed as he sees fit to defend himself against ...


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