United States District Court, S.D. Ohio, Western Division
Michael R. Barrett Judge.
OPINION AND ORDER
MICHAEL R. BARRETT, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Report and Recommendation
of the Magistrate Judge (Doc. 21, “R&R”),
Petitioner's pro se objections (Doc. 22), the
Supplemental Report and Recommendation of the Magistrate
Judge (Doc. 24, “Supplemental R&R”), and
Petitioner's pro se supplemental objections
(Doc. 25). The Court will dismiss the petition.
was charged and convicted by a jury of two counts of
felonious assault and sentenced to six years in prison.
State v. Delaffuente,  Nos. CA2015-03-040,
CA2015-03-042, 2015-Ohio-4917, ¶ 2 (Ohio Ct. App. Nov.
30, 2015). He appealed the decision, raising a single
assignment of error: that “the trial court erred by
refusing to present the issue of self-defense to the
jury.” Id. at ¶ 4. Ohio's Twelfth
District Court of Appeals (the “Twelfth
District”) affirmed and the Supreme Court of Ohio
declined review. State v. Delaffuente, 145 Ohio
St.3d 1425, 2016-Ohio-1173, 47 N.E.3d 168 (2016).
subsequent § 2254 petition raised four grounds for
relief, which the Magistrate Judge (absent objection by
Petitioner) construed to assert a single ground for
relief-denial of Fifth Amendment due process in the failure
to have the jury consider self-defense-with four arguments in
support. (Doc. 21, PAGEID 788-89). The Twelfth District had
concluded that there was insufficient evidence to move
forward with a self-defense jury instruction, and the
Magistrate Judge found that this conclusion was not
unreasonable. (Id. at PAGEID 793-94). In his
objections to the R&R, Petitioner cited to particular
portions of the record demonstrating, in his view, that the
Twelfth District's conclusion was erroneous. (Doc. 22,
PAGEID 797). Petitioner also argued that a defendant is not
required to admit the use of deadly force for a jury to
consider self-defense and that the credibility of the
testimony related to self-defense was an issue for the jury.
(Id. at PAGE ID 798). In his Supplemental R&R,
the Magistrate Judge was unpersuaded by the portions of the
record cited by Petitioner. He concluded that
Petitioner's professions throughout the record that he
did not employ deadly force (leaving aside whether a
self-defense instruction required his admission that he
did) supported his initial recommendation. (Doc. 24,
PAGEID 840-41). He also concluded that presentation of
self-defense to the jury was warranted only “if the
evidence, if believed by the jury, [was] sufficient to
establish [self-defense] by a preponderance of the
evidence.” (Id. at 841).
objections to the Supplemental R&R raise three issues. He
challenges the sufficiency of evidence for his felonious
assault convictions, because he argues that he was not at
fault in the underlying altercation or in violation of any
duty to retreat. (Doc. 25, PAGEID 843). He next argues that
he had no burden of production or persuasion on the issue of
self-defense, where the altercation occurred at his home.
(Id.). Finally, he argues that State v.
Fox, 36 Ohio App.3d 78, 520 N.E.2d 1390 (Ohio Ct. App.
1987), supports the proposition that his lack of intent to
use deadly force did not preclude him from a self-defense
STANDARD OF REVIEW
objections to a magistrate judge's report and
recommendation are received on a dispositive matter, the
assigned district judge “must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). 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.” Id.; see also 28
U.S.C. § 636(b)(1). General objections are insufficient
to preserve any issue for review: “[a] general
objection to the entirety of the [magistrate judge's]
report has the same effects as would a failure to
object.” Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless,
the objections of a petitioner appearing pro se will
be construed liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214,
governs review of § 2254 petitions and imposes a
”highly deferential standard for evaluating state-court
rulings[.]” Henderickson v. Warden Lebanon Corr.
Inst., No. 2:10-cv-1084, 2011 WL 5282677, at *5 (S.D.
Ohio Nov. 2, 2011), rec. adopted, 2012 WL 113435
(S.D. Ohio Jan. 13, 2012) (quoting Lindh v. Murphy,
521 U.S. 320, 333, n.7 (1997)). Relief under § 2254 is
limited to cases in which a state court's judgment:
(1) resulted in a decision that was contrary to,
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). Unreasonable application is
distinct from incorrect application; the former demands
“a substantially higher threshold” in order to
warrant relief. Henderickson, 2011 WL 5282677, at *5
(quoting Schriro v. Landrigan, 550 U.S., 465, 473
(2007)). While state-law issues generally do not implicate
federal habeas relief, it could be warranted if the state law
error “rise[s] for some other reason to the level of a
denial of rights protected the United States
Constitution.” Hoffner v. Bradshaw, 622 F.3d
487, 495 (6th Cir. 2010) (quoting Barclay v.
Florida, 463 U.S. 939, 957-58 (1983)).