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Smith v. Warden, Chillicothe Correctional Institution

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

January 9, 2020

Ladon Smith, Petitioner,
v.
Warden, Chillicothe Correctional Institution, Respondent.

          ORDER

          Michael R. Barrett Judge

         This 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. 13).

         I. BACKGROUND

         The 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).

         II. 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.

         III. ANALYSIS

         As an 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).

         a. Ground Five

         The 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).

         In his 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.

         Petitioner 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 by ...


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