Welch v. Lazaroff
Filing
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Memorandum of Opinion and Order: The Report and Recommendation of Magistrate Judge McHargh recommending denial of petitioner's pending Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is accepted. Magistrate Judge McHargh correctly determined that petitioner is not entitled to a writ of habeas corpus. Further, 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 7/6/16. (LC,S) re 10
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lee Welch,
Petitioner,
Vs.
Alan Lazaroff, Warden,
Respondent.
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CASE NO. 1:14CV2328
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Kenneth S. McHargh (Doc. 10) recommending the denial of petitioner’s Petition for
Writ of Habeas Corpus. Petitioner has filed Objections to the Report and Recommendation.
For the reasons set forth below, the Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides that the district court reviews de novo those portions of a report of a
magistrate judge to which a specific objection is made. The judge may accept, reject, or
modify any proposed finding or recommendation.
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Discussion
On October 16, 2009, petitioner was charged in a 67-count indictment relating to his
alleged sexual abuse of his daughter, K.W. The case was tried to the court in the Cuyahoga
County Court of Common Pleas. On June 28, 2010, defendant was convicted of 12 counts of
rape, 13 counts of sexual battery, and one count each of gross sexual imposition, importuning,
and disseminating matter harmful to juveniles. Petitioner was sentenced to 36 years in prison.
The procedural history of the state-court proceedings following petitioner’s trial is
summarized in Magistrate Judge McHargh’s Report and Recommendation. (R&R at 2-4).
Over respondent’s arguments, Magistrate McHargh found that petitioner’s habeas
petition was filed within the one-year limitations period set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). (Id. at 12). Respondent does not object to this
conclusion. For the reasons discussed in the Report and Recommendation, the Court agrees
that petitioner’s petition is timely.
Petitioner raised four grounds for relief in his petition: (1) his conviction was against
the manifest weight of the evidence; (2) “the trial court erred in concluding its own
independent research and relying on matter[s] that were not offered in evidence”; (3) the
imposition of consecutive sentences violated petitioner’s right to due process and equal
protection; and (4) the trial court failed to give reasons to support its imposition of
consecutive sentences. Magistrate McHargh found that the petition should not be granted on
the latter two grounds because they are not cognizable in a federal habeas action. Petitioner
does not object to this portion of the R&R; in fact, he conceded in his traverse that these
grounds are not cognizable on federal habeas review. The Court adopts that portion of the
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Report and Recommendation dismissing the third and fourth grounds for relief.
Magistrate McHargh recommended dismissing petitioner’s first ground for relief
because a manifest weight of the evidence claim raises an issue of state law that also is not
cognizable in federal habeas review. (R&R at 14-15). In the traverse, petitioner shifted the
focus of Ground One to a sufficiency of the evidence argument. Magistrate McHargh noted
that petitioner cannot raise new grounds in his traverse. He further noted that, even if
petitioner had raised a sufficiency of the evidence argument in his petition, it would fail
because the Eighth District Court of Appeals decision rejecting such an argument was not
contrary to clearly established Supreme Court case law. (R&R at 13).
In his objections, petitioner does not address Magistrate McHargh’s recommendations
that a manifest weight of the evidence claim is not cognizable in federal habeas or that he
cannot raise a new ground for relief in his traverse. Instead, he continues to focus on an
insufficiency of the evidence argument, maintaining that “[t]here is no evidence of force or
threat of force to substantiate Mr. Welch’s conviction.” (Pet.’s Objections at 1). He further
argues that the Eighth District’s decision was an unreasonable application of State v.
Eskridge, 38 Ohio St. 3d 56 (1988), an Ohio Supreme Court opinion, and an unreasonable
determination of the facts. (Id. at 3).
Petitioner’s objections are not well-taken. For the reasons discussed in the Report and
Recommendation, petitioner’s manifest weight of the evidence claim is not cognizable in
federal habeas, nor can petitioner convert this claim into a sufficiency of the evidence claim.
Moreover, the question under AEDPA is whether a state court decision is contrary to, or an
unreasonable application of, clearly established federal law, as determined by the United
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States Supreme Court–not whether it is an unreasonable application of state law. Thus,
petitioner’s argument regarding Eskridge is without merit. Finally, under AEDPA, a
determination of a factual issue made by a state court is presumed to be correct, and the
petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). Even if ground one were construed as a sufficiency of the evidence
claim, petitioner has not shown with clear and convincing evidence that the court of appeals’
decision was based on an unreasonable determination of the facts.
Magistrate McHargh recommended dismissing the second ground for relief because
the Eighth District’s conclusion that there was no evidence that the trial court was influenced
by anything outside the record was not contrary to, or an unreasonable application of, clearly
established federal law, as determined by the Supreme Court. The Court agrees with this
determination. Although petitioner contends that the trial judge relied on matters not
presented in evidence, he has not demonstrated in his objections that the determination of the
state court of appeals was contrary to or involved an unreasonable application of federal law.
Accordingly, petitioner’s objection to the Report and Recommendation on Ground Two is
overruled.
Conclusion
For the reasons stated above, the Report and Recommendation of Magistrate Judge
McHargh recommending denial of petitioner’s pending Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 is accepted. Magistrate Judge McHargh correctly determined
that petitioner is not entitled to a writ of habeas corpus. Further, for the reasons stated herein
and in the Report and Recommendation, the Court certifies, pursuant to 28 U.S.C. §
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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).
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 7/6/16
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