Waltzer v. Bunting

Filing 10

Order Adopting as its own the Magistrate Judge's Report and Recommendation (re 9 ), but does not adopt the Magistrate Judge's determination on the merits of Petitioner's second ground for relief. Respondent's Motion to Dis miss (re 7 ) is granted, and Waltzer's Petition is dismissed without prejudice. The court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 9/17/2013. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRIAN WALTZER,
Petitioner
v.
JASON BUNTING,
Respondent

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Case No.: 1:12 CV 2068

JUDGE SOLOMON OLIVER, JR.

ORDER

On August 9, 2012, Petitioner Brian Waltzer (“Waltzer” or “Petitioner”) filed a Petition for
Writ of Habeas Corpus (“Peititon,” ECF No. 1) pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his state court convictions and sentences for one count of felonious assault and
one count of domestic violence. Waltzer argues that his Petition should be granted based on the
following grounds:
Ground One: His trial counsel was ineffective for failing to call material witnesses to
testify, failing to present evidence that the victim was intoxicated and lied to
the police, failing to object to the prosecution’s use of peremptory challenges
to exclude racial minorities from the jury, and failing to object to judicial
misconduct.
Ground Two: The court erroneously admitted hearsay testimony from police officer
Lozinak because Lozinak testified to statements made by the victim more
than three hours after the victim called to report the incident to police.
Ground Three: The trial court violated his fifth, sixth, and fourteenth amendment rights
because he was convicted of allied offenses and the charges should have
been merged.
Ground Four: His due process rights were violated because two judges presided over the
trial. In support of this claim, Petitioner argues that the second judge did not

familiarize herself with the case, did not give a jury instruction of a lesser
charge, and that the jury had questions but, presumably, the judge was not
familiar enough with the case to provide answers.
(See Petition at 5-10.) This court referred the case to Magistrate Judge George J. Limbert for
preparation of a Report and Recommendation. Respondent Jason Bunting (“Respondent”) filed a
Motion to Dismiss (ECF No. 7) on November 7, 2012. In his Motion, Respondent argued that
Petitioner has not exhausted his state court remedies.
Magistrate Judge Limbert submitted a Report and Recommendation (ECF No. 9) on July 19,
2013, recommending that Respondent’s Motion be granted, and Waltzer’s Petition for Habeas
Corpus under 28 U.S.C. § 2254 be dismissed without prejudice. The Magistrate Judge found that
Waltzer’s “petition is a mixed petition, in that it contains both exhausted and unexhausted claims.”
(Id. at 11.) He determined that Petitioner exhausted ground one of his claim by raising it in a Rule
26(b) Application for Reopening of Appeal, because Ohio law does not permit a delayed appeal of
a Rule 26(b) claim. (Id.) With respect to ground two, the Magistrate Judge found that Petitioner
has not exhausted this claim because Petitioner has only appealed it to the state court of appeals, and
has not presented it to the Supreme Court of Ohio. (Id.) The Magistrate Judge then determined that
the court should not stay the proceedings to allow Petitioner to exhaust his claim in state court, but
should instead dismiss Waltzer’s Petition without prejudice. (Id. at 13.) The Magistrate Judge
reasoned that Petitioner had not shown good cause for his failure to appeal his claim contained in
his second ground for relief to the Supreme Court of Ohio and that Petitioner failed to show that his
unexhausted claim was meritorious. (Id. at 13.) Inasmuch as the Magistrate Judge found, based on
grounds one and two, that Petitioner filed a mixed Petition, he did not address grounds three and
four.
As of the date of this Order, Petitioner has not filed objections to the Report and
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Recommendation. By failing to do so, he has waived the right to appeal the Magistrate Judge’s
recommendation. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.
140 (1985).
The court finds that after careful de novo review of the Report and Recommendation and all
other relevant documents, the Magistrate Judge’s conclusions are fully supported by the record and
controlling case law. Accordingly, the court adopts as its own the Magistrate Judge’s Report and
Recommendation, with one change.
The Magistrate Judge correctly determined that the court should dismiss Waltzer’s Petition
without prejudice and should not hold Waltzer’s Petition in abeyance, for the reason that Petitioner
has not shown good cause for his failure to exhaust all state remedies with regard to his second
ground for relief. The Magistrate Judge also found that Petitioner’s claim was not meritorious.
However, the court does not adopt this finding. In Rhines v. Weber, 544 U.S. 269 (2005), the United
States Supreme Court laid out a three part analysis to determine when it is appropriate to stay a
mixed petition to allow a petitioner to exhaust his claim in state court. To warrant a stay, the district
court must find that: (1) the petitioner showed good cause for failing to exhaust his claim in state
court; (2) the petitioner’s claim is not plainly meritless; and (3) the petitioner has not engaged in
dilatory tactics. Id. at 277-78. Inasmuch as Petitioner has failed to show good cause for failing to
exhaust his claim, the court need not address the last two prongs of the analysis provided in Rhines.
Therefore, the court fails to adopt the Magistrate Judge’s finding on the merits of Petitioner’s second
ground for relief.
Accordingly, the court adopts as its own the Magistrate Judge’s Report and Recommendation
(ECF No. 9), but fails to adopt the Magistrate Judge’s determination on the merits of Petitioner’s
second ground for relief. Respondent’s Motion to Dismiss (ECF No. 7) is hereby granted, and
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Waltzer’s Petition is dismissed without prejudice. The court further certifies that pursuant to 28
U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is
no basis on which to issue a certificate of appealability. Fed.R.App.P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

September 17, 2013

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