Spencer v. Erwin et al

Filing 12

ORDER ADOPTING RECOMMENDED DISPOSITION AND ORDER: (1) Petitioner's Obj 11 to MRR are overruled; (2) Mag Judge's Recommended Disposition 10 is adopted as the Opinion of the Court; (3) Petitioner's Petition, Amended Petition, and Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docs. # 1, 7, and 9) are hereby denied; (4) The Court certifies that, for the reasons previously set forth in the Magistrate Judge's Recommended Disposition ( Doc. # 10), as well as those stated herein, there would be no arguable merit for an appeal in this matter, and, therefore, no certificate of appealability will issue; (5) This matter is hereby dismissed with prejudice and stricken from the Court's active docket; and (6) A separate Judgment will be entered contemporaneously with this Order. Signed by Judge David L. Bunning on 1/25/2018.(AKR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT FRANKFORT
CIVIL ACTION NO. 17-81-DLB-HAI
ROBIN R. SPENCER
VS.

PETITIONER

ORDER ADOPTING RECOMMENDED DISPOSITION AND ORDER

JIM ERWIN, et al.

RESPONDENT
** ** ** ** ** ** ** **

This matter is before the Court upon Petitioner Robin Spencer’s Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. # 105). Pursuant to the Court’s
local practice, this matter was referred to Magistrate Judge Hanly A. Ingram for the
purpose of reviewing the Petition and preparing a Report and Recommendation. After
reviewing the issues raised by Petitioner, Magistrate Judge Ingram issued a
Recommended Disposition on November 3, 2017 recommending that the Petition for a
Writ of Habeas Corpus be dismissed with prejudice. (Doc. # 10). Petitioner having filed
Objections to the R&R (Doc. # 11), and the Respondent having filed no response and the
time for submitting such a response having expired, this matter is now ripe for the Court’s
review.
In accordance with 28 U.S.C. § 636(b)(1), the Court has conducted a de novo
review of those portions of the Recommended Disposition to which Petitioner has
objected. For reasons that follow, Petitioner’s Objections are overruled and Magistrate
Judge Ingram’s Recommended Disposition is adopted as the opinion of the Court.

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I.

Factual and Procedural Background
The underlying facts of this case have been recounted by the Kentucky Court of

Appeals, so the Court will briefly summarize the facts as they are restated in Spencer v.
Comm., No. 2014-CA-1878-MR, at 1-2 (Ky. Ct. App. April 22, 2016). Petitioner was
indicted on two counts of Sexual Abuse in the First Degree and one count of Sodomy in
the first degree. These charges stemmed from allegations that Petitioner sexually abused
his two-stepdaughters when they were both under the age of twelve. Petitioner plead
guilty to the two counts of Sexual Abuse in the First Degree and to the amended charge
of Sodomy in the Third Degree. The court sentenced Petitioner to a total of fifteen years
imprisonment. He was ordered to serve six months incarceration with the remainder of
his sentence probated for a period of five years.
Two years later, the two victims signed affidavits recanting their testimony. In the
affidavits, the victims claimed that they made up the story about the abuse because they
were angry with the Petitioner for divorcing their mother. Petitioner filed a motion to
withdraw his guilty plea. A hearing was held and at the hearing the victims indicated that
they wrote the letters at the direction of their mother. Both victims testified that the letters
were false and the abuse actually occurred. The trial court denied the Petitioner’s motion.
After his motion was denied, Petitioner filed a motion to set aside his judgment
under the Kentucky Rule of Civil Procedure 60.02. The Kentucky Court of Appeals
affirmed the trial court’s denial of his Rule 60.02 motion.

Petitioner applied for

discretionary review before the Kentucky Supreme Court, however, the application was
denied.

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On October 2, 2017, Petitioner filed a petition pursuant to 28 U.S.C. § 2254 in the
Western District of Kentucky. (Doc. # 1). On October 5, Judge Thomas B. Russell
ordered that the case be transferred to the Eastern District of Kentucky. (Doc. # 5).
During the preliminary review phase of the petition, the Court has twice ordered Petitioner
to amend his petition in a manner that specifies a basis for federal habeas corpus relief.
(Doc. # 10 at 1). Yet, after three attempts to amend the petition, Magistrate Judge Ingram
found the pleadings remain too vague for a meaningful response or evaluation by the
Court. Id. Petitioner filed Objections to Magistrate Judge Ingram’s findings, which are
the subject of the Court’s review.
II.

Analysis
A.

Legal Standards

A state prisoner has a statutory right to attack his conviction. West v. Bell, 242
F.3d 338, 346 (6th Cir. 2001). A state prisoner may seek federal habeas corpus relief on
the ground that he is being held in custody in violation of the Constitution, laws, or treaties
of the United States. 28 U.S.C. § 2254(a).
The Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (1996) (“AEDPA”), requires “heightened respect” for legal and factual
determinations made by state courts. See Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). This highly deferential standard is difficult to meet. Cullen v. Pinholster, 563 U.S.
170, 181 (2011). All of the state court’s factual findings are presumed to be correct, and
can be rebutted only by “clear and convincing evidence.” Mitchell v. Mason, 325 F.3d
732, 737-38 (6th Cir. 2003). Similarly, legal conclusions made by state courts also receive
substantial dereference under AEDPA. “[A] federal habeas court may overturn a state

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court’s application of federal law only if it is so erroneous that there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s
precedents.” Nevada v. Jackson, 569 U.S. 505, 133 S. Ct. 1990, 1992 (2013).
If a party files objections to the recommendation, a district court must then consider
those objections de novo and “accept, reject, or modify the recommendation, receive
further evidence, or resubmit the matter to the magistrate judge with instructions.” FED.
R. CRIM. P. 59(b)(3). The objections must be specific; “vague, general or conclusory
objections . . . [are] tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App’x
354, 356 (6th Cir. 2001). Moreover, “an ‘objection’ that does nothing more than state a
disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.” VanDiver
v. Martin, 304 F. Supp. 2d 934, 938 (E.D. Mich. 2004).
B.

Petitioner’s Objections

Petitioner’s Objections amount to no more than a disagreement with Magistrate
Judge Ingram’s finding that no federal claim is present in the petition. (Doc. # 11).
Specifically, Petitioner argues that a federal claim is clearly asserted in the Petition,
namely that the failure to grant a new trial was a violation of the Petitioner’s constitutional
rights. Id.
Objections, like these, that do “nothing more than state a disagreement with a
magistrate’s suggested resolution, or simply summarize[] what has been presented
before” are not valid “objections.” Id. at 938. Although the Court believes it could simply
overrule the Petitioner’s Objections on this ground, it will briefly review Magistrate Judge
Ingram’s recommendation out of an abundance of caution.

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A state prisoner may seek federal habeas corpus relief on the ground that he is
being held in custody in violation of the Constitution, laws, or treaties of the United States
pursuant to 28 U.S.C. § 2254(a). In essence, before relief may be granted, the Petitioner
must state a claim that warrants federal relief.1 Magistrate Judge Ingram concluded in
his R&R that after three attempts to amend, Petitioner’s pleadings remain too vague for
a meaningful response or evaluation by the Court and should be dismissed pursuant to
Federal Rule of Civil Procedure 12(e). (Doc. # 10 at 1). The Court agrees.
Petitioner has failed to articulate any theory within his pleadings as to how or why
his current restraint violates federal law. Neither the Original Petition (Doc. # 1), the
Amended Petition (Doc. #7-1), nor the Second Amended Petition (Doc. # 9) sufficiently
inform the Court of the federal rights Petitioner claims have been violated. In the Original
Petition, Petitioner argued that the state court’s refusal to set aside his conviction
pursuant to Kentucky Rule of Federal Procedure 60.02 “amounts to a violation of
constitutional law.” (Doc. # 1). After being ordered to supplement the Original Petition
(Doc. # 6), the Amended Petition merely cites to 18 U.S.C. §§ 2254(d) and (e), without
providing any additional analysis. (Doc. # 7-1). Magistrate Judge Ingram again ordered
an additional supplementation (Doc. # 8), however, the Second Amended Petition is
similarly deficient, as it contains no substantive difference from the Amended Petition—
instead, the claims appear to be identical to those raised in state court. (Doc. # 9-2).
Likewise, Petitioner’s Objections fail to articulate a claim that warrants federal
relief. Petitioner argues that his federal claim is clear—the failure to set aside the state-

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To the extent Petitioner’s Objections argue that Magistrate Judge Ingram applied an
incorrect and overly stringent standard of review (Doc. # 11 at 2), such an objection is overruled.
Magistrate Judge Ingram applied the proper standard of review.

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court Order adjudging him guilty and award him a new trial pursuant to Kentucky Rule of
Civil Procedure 60.02(d) and (f) violates the Constitution.

However, Petitioner is

misguided. Any rights that Petitioner enjoys by operation of Kentucky Rule of Civil
Procedure 60.02 cannot be vindicated in federal court. See 28 U.S.C. § 2254(a).
To the extent that prior issues were addressed by Magistrate Judge Ingram, but
not objected to by Petitioner, those issues are waived. Cowherd v. Million, 380 F.3d 909,
912 (6th Cir. 2004) (holding that generally, a failure to file specific objections to a
magistrate judge’s report constitutes a waiver of those objections) (citing Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995)).
No certificate of appealability shall issue in this matter.

“A certificate of

appealability may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order for a certificate to issue,
Petitioner must be able to show that reasonable jurists could find in his favor, and the
“question is the debatability of the underlying federal constitutional claim, not the
resolution of the debate.” Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). In this case,
reasonable jurists would not debate the denial of Petitioner’s § 2254 motion on the
grounds raised or conclude the issues presented are adequate to deserve
encouragement to proceed further. See id.
III.

Conclusion
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)

Petitioner’s

Objections

(Doc.

#

Recommended Disposition are hereby overruled;

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11)

to

the

Magistrate

Judge’s

(2)

The Magistrate Judge’s Recommended Disposition (Doc. # 10) is hereby

adopted as the Opinion of the Court;
(3)

Petitioner’s Petition, Amended Petition, and Second Amended Petition for

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docs. # 1, 7, and 9) are hereby
denied;
(4)

The Court certifies that, for the reasons previously set forth in the Magistrate

Judge’s Recommended Disposition (Doc. # 10), as well as those stated herein, there
would be no arguable merit for an appeal in this matter, and, therefore, no certificate of
appealability will issue;
(5)

This matter is hereby dismissed with prejudice and stricken from the

Court’s active docket; and
(6)

A separate Judgment will be entered contemporaneously with this Order.

This 25th day of January, 2018.

K:\DATA\ORDERS\Frankfort\17-81 Order Adopting R&R.docx

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