Nitsche v. Erdos

Filing 16

Opinion and Order For the reasons stated in the Order, the Court hereby overrules Nitsche's Objections (Doc. # 15 ) and adopts the Report and Recommendation in full. Accordingly, Nitsche's motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. Signed by Judge Dan Aaron Polster on 10/18/2019. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LUIS NITSCHE,
Petitioner
v.
RONALD EDROS,
Respondent.

) Case No. 1:17-cv-1037
)
) Judge Dan Aaron Polster
)
) OPINION AND ORDER
)
)
)
)
)

Before the Court is the Report and Recommendation of Magistrate Judge Thomas M.
Parker in the above-entitled action, Doc #: 12. The Magistrate Judge recommends the Court
dismiss Petitioner Luis Nitsche’s 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus by a
person in State Custody, Doc #: 4. On October 15, 2019, Nitsche timely filed objections to
Magistrate Judge Parker’s R & R. Doc #: 15.
The Court has reviewed the Magistrate Judge’s R & R and agrees that grounds one, three,
and four are procedurally defaulted. The Court further agrees that ground two does not present a
decision contrary to or an unreasonable application of clearly established federal law.
Nitsche asserts in his Objections regarding ground one that his Double Jeopardy Clause
claim has not been procedurally defaulted because his failure to raise Double Jeopardy in state
court was the result of the prison librarian’s refusal to notarize an affidavit necessary to file a
motion to reopen his direct appeal under Ohio App. R. 26(B). However, Nitsche’s motion to
reopen his direct appeal did not include a Double Jeopardy Clause claim. Doc #: 11-1 at 238.

Thus, even if Nitche had his affidavit notarized and his motion to reopen had been granted, his
Double Jeopardy Clause claim would still be procedurally defaulted.
In his remaining Objections Nitsche asserts arguments fully addressed by the Magistrate
Judge. The Federal Magistrates Act requires a district court to conduct a de novo review of those
portions of the R & R to which an objection has been made. 28 U.S.C. § 636(b)(1). However, an
Objection to an R & R is not meant to be simply a vehicle to rehash arguments set forth in the
petition, and the Court is under no obligation to review de novo objections that are merely an
attempt to have the district court reexamine the same arguments set forth in the petition and
briefs. Roberts v. Warden, Toledo Correctional Inst., No. 1:08-CV-00113, 2010 U.S. Dist.
LEXIS 70683, at *22, 2010 WL 2794246, at *7 (S.D. Ohio Jul. 14, 2010) (citation omitted); see
Sackall v. Heckler, 104 F.R.D. 401, 402 (D.R.I. 1984) (“These rules serve a clear and sensible
purpose: if the magistrate system is to be effective, and if profligate wasting of judicial resources
is to be avoided, the district court should be spared the chore of traversing ground already
plowed by the magistrate . . . .”); O’Brien v. Colvin, No. CIV.A. 12-6690, 2014 WL 4632222, at
*3, 2014 U.S. Dist. LEXIS 129179, at *7–8 (E.D. Pa. Sept. 16, 2014) (collecting cases); Howard
v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (“A general objection to
the entirety of the magistrate’s report has the same effects as would a failure to object. The
district court’s attention is not focused on any specific issues for review, thereby making the
initial reference to the magistrate useless. The functions of the district court are effectively
duplicated as both the magistrate and the district court perform identical tasks. This duplication
of time and effort wastes judicial resources rather than saving them, and runs contrary to the
purposes of the Magistrates Act.”). The Court need not afford de novo review to objections
which merely rehash arguments presented to and considered by the magistrate judge.

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Thus, the Court hereby OVERRULES Nitsche’s Objections (Doc. # 15) and adopts the
Report and Recommendation in full. Accordingly, Nitsche’s motion for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS SO ORDERED.

/s/ Dan Aaron Polster October 18, 2019___
Dan Aaron Polster
United States District Judge

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