Andera v. Tibbals
Filing
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Memorandum of Opinion and Order: Accordingly, the Report and Recommendation is accepted. The Petition for Writ of Habeas Corpus is denied. Furthermore, for the reasons stated herein and in the Report and Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). Judge Patricia A. Gaughan on 10/17/12. (LC,S) re 12
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Clement Andera,
Petitioner,
vs.
Terry A. Tibbals, Warden
Respondent.
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CASE NO. 1:11 CV 2606
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge White (Doc. 12) which recommends denial of the Petition for Writ of Habeas Corpus
pending before the Court. Petitioner filed Objections to the Report and Recommendation. For
the following reasons, the Report and Recommendation is ACCEPTED.
Facts
In September 2008, a jury found petitioner guilty of aggravated vehicular homicide, two
counts of aggravated vehicular assault, and driving under the influence. The conviction arose
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out of an incident wherein petitioner’s pick-up truck veered off the road onto the sidewalk where
he hit two trees. As the trees fell, they struck three girls, killing one and injuring the others.
Petitioner asserted 12 grounds for habeas review, but subsequently withdrew grounds four and
seven. Following briefing, the Magistrate Judge rejected all the grounds as being without merit
or procedurally defaulted. Petitioner, through counsel, filed Objections.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts
provides, “The judge must determine de novo any proposed finding or recommendation to which
objection is made. The judge may accept, reject, or modify any proposed finding or
recommendation.”
Discussion
Petitioner initially objects to the Magistrate Judge’s failure to address his argument
regarding the constitutionality of the AEDPA. Petitioner asserts that this statute violates the
doctrine of separation of powers. But, as previously acknowledged by another district court in
this Circuit, “While the Sixth Circuit has yet to pass on the separation of powers question raised
by [petitioner], every sister circuit that has taken it up has come down in favor of AEDPA’s
constitutionality.” Wang v. Sampson, 2010 WL 4340536 (E.D.Mich. Oct. 27, 2010) (citations
omitted). Petitioner points to a Sixth Circuit case to support his position. That case, however,
reports the dissent on a denial of a request for rehearing which criticizes the majority’s overlynarrow interpretation of the “unreasonable application” prong of the AEDPA. Davis v. Straub,
445 F.3d 908 (6th Cir. 2006). This Court declines to find the AEDPA unconstitutional.
The Magistrate Judge rejected petitioner’s first ground which challenged, on Sixth
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Amendment grounds, his inability to cross-examine the police officer who administered the field
sobriety tests as to the standards of administering such tests, although he otherwise crossexamined the officer extensively. Even assuming petitioner raised this claim in state court as a
Confrontation Clause issue which he did not, the Court agrees with the Magistrate Judge that the
trial judge’s decision to disallow testimony about how the tests are generally administered while
permitting broad cross-examination as to how petitioner’s test was actually administered is
within the wide-latitude granted to judges under United States Supreme Court law. Although
petitioner objects on the basis that the judge precluded him from effectively challenging the
results of the tests, the state appellate court’s decision was not contrary to clearly established
federal law.
The Magistrate Judge concluded that petitioner’s second ground was not cognizable on
habeas review given that it challenged the state appellate finding that the offenses were strict
liability in nature and, therefore, lacking in a mens rea element. Petitioner presents no basis on
which to find that this issue did not involve the interpretation of state law only.
The third and tenth grounds challenged admission of medical records and autopsy photos.
The Court agrees with the Magistrate Judge that these grounds are not cognizable on habeas
review as they involve state procedure or evidentiary law, and the trial was not rendered so
fundamentally unfair as to deprive petitioner of his federal rights.
Likewise, the Magistrate Judge rejected the fifth ground, asserting that “other acts”
evidence denied petitioner a fair trial, given that Sixth Circuit case law has recognized the
absence of clearly established Supreme Court precedent holding that a state violates due process
by permitting propensity evidence in the form of other bad acts evidence. Petitioner fails to
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demonstrate to the contrary.
Ground six involved dismissal of two jurors by the trial court, one for violating the
court’s admonition against cell phones and one to fulfil a previously scheduled business trip.
Both were replaced by alternate jurors. The Court agrees that the claim is not cognizable on
habeas review, or that due process was not violated.
The Magistrate Judge rejected ground eight given that the petitioner did not identify a
constitutional error in the state court’s determination regarding the failure to give a lesser
included offense instruction. Petitioner fails to demonstrate that the state court determination
was contrary to clearly established federal law.
Ground nine relates to prosecutorial misconduct and, again, the state court determination
on this issue was not contrary to, or an unreasonable application of, clearly established federal
law.
The Magistrate Judge found ground eleven, challenging sentencing, to be procedurally
defaulted in part and not a case of deficient counsel. Petitioner’s arguments to the contrary fail
to show that the Magistrate Judge was incorrect.
Ground twelve asserted cumulative error which is not cognizable here.
For the reasons stated above, and those stated in the Report and Recommendation which
is incorporated herein, the Petition for Writ of Habeas Corpus is denied.
Conclusion
Accordingly, the Report and Recommendation is accepted. The Petition for Writ of
Habeas Corpus is denied. Furthermore, for the reasons stated herein and in the Report and
Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from
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this decision could not be taken in good faith, and that there is no basis upon which to issue a
certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 10/17/12
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