United States District Court, S.D. Ohio, Western Division
Michael R. Barrett Judge
matter is before the Court on the Magistrate Judge's
Report and Recommendation (“R&R”) that
Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 should be denied. (Doc.
Magistrate Judge adequately summarized the procedural
background and pertinent facts of this case in the R&R
and the same will not be repeated herein. 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. 13); see United
States v. Walters, 638 F.2d 947, 949-950 (6th
Cir. 1981). Petitioner filed timely objections. (Doc. 14).
STANDARD OF REVIEW
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.”
initial matter, Petitioner does not object to the Magistrate
Judge's recommendations regarding Grounds One through
Four or Petitioner's argument concerning the propriety of
his sentence. (Doc. 14). Accordingly, the Court will not
discuss those Grounds or that argument and, instead, will
focus on Petitioner's objections to the Magistrate
Judge's recommendations regarding Ground Five and
Petitioner's argument that the trial court failed to give
jury instructions about Ohio Rev. Code § 2903.12
(“Aggravated assault”). (Doc. 14).
Magistrate Judge acknowledged Petitioner's argument that
his conviction is supported by insufficient evidence, found
that Petitioner's argument is properly before this Court,
and explained the standard of review for a federal habeas
court reviewing a petitioner's allegation that a verdict
was entered upon insufficient evidence and a state
court's decision on the merits of that federal
constitutional claim. (Doc. 13 at PageID 723-27). The
Magistrate Judge emphasized that credibility questions are
for the jury and found that, ultimately, the jury in
Petitioner's trial found the two victims' testimony
more credible than Petitioner's testimony. (Id.
at PageID 727).
objections, Petitioner states that “the
Magistrate[‘]s determination of the evidence . . .
would not support [Petitioner's] conviction, ”
“the Magistrate misapplied the law to the facts and
evidence adduced at trial, ” and the “Magistrate
erred in his evaluation of the evidence.” (Id.
at PageID 731-32). Petitioner's conclusory statements
disagreeing with the Magistrate Judge's report, without
more, do nothing to persuade the Court that it should reject
the Magistrate Judge's recommendation on this Ground.
next asserts that,
although the jury has the primary duty to detect and
disregard any and all false testimony, the trial court and
appellate court has the same like duty when reviewing the
evidence, and not simply throw such responsibility back at
those who don't know the law, no matter how well
they've been instructed.
(Doc. 14 at PageID 733). However, “[t]he flaw in
Petitioner's argument is that neither the state court of
appeals, nor this Court, is permitted by law to second-guess
the jury's decision about which witnesses to
believe” and “[r]esolving conflicts in the
testimony is precisely the jury's role in a case.”
Bailey v. Mohr, No. 2:14-CV-2751, 2016 WL 6822796,
at *8 (S.D. Ohio Nov. 18, 2016), report and
recommendation adopted, No. 2:14-CV-2751, 2016 WL
7243559 (S.D. Ohio Dec. 14, 2016). The Court is not persuaded