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Seal v. Warden, London Correctional Institution

United States District Court, S.D. Ohio, Western Division

January 8, 2020

Arthur Seal, Petitioner,
v.
Warden, London Correctional Institution, Respondent.

          ORDER

          MICHAEL R. BARRETT, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on the Magistrate Judge's Report and Recommendation (“R&R”) and Supplemental R&R that recommend that Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed with prejudice. (Docs. 23, 28).

         The parties received proper notice under Rule 72(b) of the Federal Rules of Civil Procedure, which included notice that the parties would waive further appeal if they failed to file objections to the R&R in a timely manner. (Doc. 23 at PageID 1322); (Doc. 28 at PageID 1367); see United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Petitioner filed timely objections. (Docs. 26, 33). The Magistrate Judge adequately summarized the procedural background and pertinent facts of this case in the R&R and Supplemental R&R and the same will not be repeated herein unless necessary to respond to one of Petitioner's objections.

         I. STANDARD OF REVIEW

         When the assigned district court judge receives objections to a magistrate judge's R&R on a dispositive matter, the 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 that review, the district judge “may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         II. ANALYSIS

         Petitioner withdrew his Fourth Ground for Relief. (Doc. 19 at PageID 1251); (Doc. 26 at PageID 1329); (Doc. 33 at PageID 1377). The Court accepts the withdrawal and will discuss Petitioner's objections to the Magistrate Judge's recommendations regarding Grounds One through Ten.

         a. Ground One

         The Magistrate Judge acknowledged Petitioner's arguments that the evidence at trial was insufficient to convict him of child endangering under Ohio law and that his trial counsel was ineffective by failing to give the jury the proper elements of child endangering under Ohio law. (Doc. 23 at PageID 1300-09); (Doc. 28 at PageID 1357). The Magistrate Judge found that the Fourth District Court of Appeals' (“Fourth District”) decision-that the evidence presented at trial was sufficient to prove Petitioner's guilt beyond a reasonable doubt under the relevant Ohio statutes on child endangering-was not an objectively unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979). (Doc. 23 at PageID 1308); (Doc. 28 at PageID 1357). In light of the Magistrate Judge's finding regarding the sufficiency of the evidence presented at Petitioner's trial, the Magistrate Judge found that Petitioner's argument about the alleged ineffective assistance of counsel regarding the jury instructions failed. (Doc. 23 at PageID 1308-09); (Doc. 28 at PageID 1357). The Magistrate Judge also found that Petitioner's attempt to argue that there was insufficient evidence to convict him on his other two charges-for illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture of drugs, both with the additional finding that the offenses occurred while in the vicinity of a juvenile-is procedurally defaulted because Petitioner did not raise those arguments on direct appeal. (Doc. 28 at PageID 1357).

         Petitioner does not object to the Magistrate Judge's recommendation regarding the child endangering conviction but does object that “[t]his is a case of actual innocence” and there was not sufficient evidence for his other two convictions. (Doc. 26 at PageID 1326). Moreover, Petitioner appears to concede that the Magistrate Judge's finding under Jackson was proper. (Doc. 33 at PageID 1372-73).

         After a de novo review of the filings in this matter, the Court agrees with the Magistrate Judge's analysis and recommendation that Petitioner's first ground for relief should be dismissed with prejudice. See Fed. R. Civ. P. 72(b)(3).

         b. Ground Two

         The Magistrate Judge acknowledged Petitioner's arguments that his three convictions-illegal manufacture of drugs, illegal assembly or possession of chemicals for the manufacture of drugs, and child endangering-should have been merged together for purposes of sentencing pursuant to Ohio Rev. Code. § 2941.25(A) and that he received ineffective assistance of counsel because his attorney did not make this argument on direct appeal. (Doc. 23 at PageID 1309). The Magistrate Judge explained that the Fourth District held that Section 2941.25(A) does not apply to Petitioner's convictions because that Section does not apply to endangering children convictions and Petitioner's other two convictions were not committed by the same conduct as required by State v. Johnson, 128 Ohio St.3d 153 (2010), and Petitioner's ineffective assistance of appellate counsel argument, thus, fails. (Doc. 23 at PageID 1309) (citing Doc. 13-1 at PageID 590-92). The Magistrate Judge concluded that, for the reasons articulated by the Fourth District, Petitioner's Second Ground for Relief is without merit.

         Petitioner concedes that Section 2941.25(A) does not apply to his conviction for child endangering but argues that his convictions of illegal manufacture of drugs and of illegal assembly or possession of chemicals for the manufacture of drugs “certainly falls under the double jeopardy.” (Doc. 26 at PageID 1327); (Doc. 33 at PageID 1373). To the extent that Petitioner asserts that “[a]n explanation of how one can manufacture without possessing the chemicals to do so would be appreciated if this Court feels this claim ...


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