Barb v. Clipper

Filing 35

Order The Court overrules the Objections 33 , adopts the R&R 32 in its entirety, and denies the Petition 1 . Signed by Judge Dan Aaron Polster on 6/25/2012. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DANNY BARB,
Petitioner,
vs.
KIMBERLY CLIPPER, Warden,
Respondent.

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Case No. 1:11 CV 563
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
AND ORDER

This case is before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody, filed by Pro Se Petitioner Danny Barb (“Petition”). (Doc
#: 1.) Barb challenges the constitutionality of his state-court conviction and eight-year sentence
for felonious assault on sixteen grounds. (Id.) Pursuant to Local Rule 72.2, the Petition was
automatically referred to Magistrate Judge Kenneth S. McHargh for preparation of a Report and
Recommended Decision (“R & R”). (See non-document entry dated 4/22/11.)
The Magistrate Judge has now issued an R & R recommending that the Court deny the
Petition. (Doc #: 32.) Specifically, the Magistrate Judge has concluded that the first, second,
third, fourth, seventh, tenth and twelfth grounds for relief have not been exhausted because they
were not raised on direct appeal, and they are barred by res judicata. The Magistrate Judge also
found that the Sixth Amendment ineffectiveness claims asserted in grounds eight, fourteen and
fifteen, and the underlying claims, were procedurally defaulted, and Barb failed to show cause
for the default and prejudice resulting therefrom. With regard to the remaining grounds, the
Magistrate Judge explained in detail why the state court rulings did not involve an unreasonable

application of clearly established federal law, as determined by the Supreme Court of the United
States.
Barb has filed Objections to Decision of Magistrate Judge (“Objections”). (Doc #: 33.)
First, Barb objects to the fact that the Respondent filed a sur-reply to Barb’s traverse without
leave of court. (Id. at 2.) Since the Magistrate Judge expressly acknowledged that the
Respondent filed a sur-reply without leave of court and never mentioned that brief in his
memorandum, the Court presumes he did not rely on that brief when recommending that the
Court deny the § 2254 Petition.
Next, Barb generally objects to the Magistrate Judge’s recitation of the factual and
procedural histories of his case, the presumption of correctness the Magistrate Judge afforded
certain state court rulings, the Magistrate Judge’s conclusion that Barb failed to exhaust and
procedurally defaulted many of his habeas claims, the Magistrate Judge’s treatment of his Sixth
Amendment ineffectiveness claims, and finally, “all of the magistrate judge’s report and
recommendation.” (Id. at 5.) The Court finds that the arguments Barb raises therein are no
different than the arguments the Magistrate Judge reviewed and passed upon in his exhaustive
and well-reasoned thirty-eight page R & R.
Accordingly, the Court OVERRULES the Objections (Doc #: 33), ADOPTS the R & R
in its entirety (Doc #: 32), and DENIES the Petition (Doc #: 1).
IT IS SO ORDERED.

/s/ Dan A. Polster 6/25/2012
Dan Aaron Polster
United States District Judge

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