United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Merz Magistrate Judge
DECISION AND ORDER
J. DLOTT UNITED STATES DISTRICT JUDGE
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Objections (ECF No. 14) to the
Magistrate Judge's Report and Recommendations
recommending dismissal of the case ("Report," ECF
No. 10). Although Petitioner was represented by counsel until
after the Report was filed, he has now discharged his
attorney and filed the Objections pro se (ECF No.
required by Fed.R.Civ.P. 72(b), the Court has reviewed de
novo all the objections made by Petitioner. Based on
that review, the Court ADOPTS the Report and DISMISSES the
case on the following bases.
One: Improper Venue
First Ground for Relief, Petitioner asserts he was improperly
tried in Clermont County for a drug transaction that took
place in Hamilton County. The Magistrate Judge recommended
dismissing this claim because it does not state a claim for
relief under the United State Constitution. That is to say,
no clause of the Constitution commands that an Ohio criminal
case must be tried in the county where the offenses occurred.
frames his objections as a "First Assignment of
Error." He argues his venue claim as a matter of due
process under Article 10, § 1 of the Ohio Constitution
and Ohio R. Crim. P. 7(A). He cites Ohio case law for the
proposition that the prosecution must prove beyond a
reasonable doubt that the alleged crime occurred in the
county where the indictment was returned (Objections, ECF No.
14, PagelD 1852, citing State v. Meridy,
2005-Ohio-241 (Ohio App. 12lhDist. Jan. 24, 2005),
which cites State v. Nevius, 147 Ohio St. 263
(1947), for the same proposition.
objection misses the point of the Magistrate Judge's
analysis of Ground One. Habeas corpus relief can only be
granted for violations of the United States Constitution,
whatever the Ohio Constitution may require. The fact that a
particular procedure is required by state law does not mean
that it is required by federal due process. Failure to abide
by state law is not itself a constitutional violation.
Roberts v. City of Troy, 173 F.2d 720 (6* Cir.
1985). Violation by a State of its own procedural rules does
not necessarily constitute a violation of due process.
Bates v. Sponberg, 547 F.2d 325 (6th Cir.
1976); Ryan v. Aurora City Bd of Educ, 540 F.2d 222,
228 (6thCir. 1976). "A state cannot be said
to have a federal due process obligation to follow all of its
procedures; such a system would result in the
constitutionalizing of every state rule, and would not be
administrable." Levine v. Torvik, 986 F.2d
1506, 1515 (6th Cir. 1993).
venue were an element of the crimes charged, then the State
would be required to prove it beyond a reasonable doubt.
In re Winship, 397 U.S. 358 (1970). But the Supreme
Court of Ohio has held venue is not a material element of any
offense charged. State v. Headley, 6 Ohio St.3d 475,
477, 6 Ohio B. 526, 453 N.E.2d 716 (1983).
second objection, framed as a Second Assignment of Error,
also complains of improper venue (Objections, ECF No. 14,
first and second objections are without merit and are hereby
Ground: Failure to Merge Offenses
third objection ("assignment of error") is that the
trial court failed to merge the drug trafficking and
corrupting another with drugs convictions (Objections, ECF
No. 14, PagelD 1854). The Petition never raised a claim of
failure to merge or Double Jeopardy in federal constitutional
terms. A new claim in habeas corpus cannot be raised for the
first time in objections to a dispositive Report and
Recommendations. Jalowiec v. Bradshaw, 657 F.3d 293
(6th Cir. 2011), citing Tyler v.
Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).
Ground: Insufficient Evidence ...