Harris v. Bracy

Filing 17

Order and Decision Adopting the Report and Recommendation (re 12 ) of the Magistrate Judge. The petition is dismissed. An appeal from this decision may not be taken in good faith and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 7/24/18. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KERMIT B. HARRIS,

Petitioner,
v.

WARDEN CHARMAINE BRACY,
Respondent.

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Case No. 1:17cv2094

JUDGE JOHN R. ADAMS

ORDER AND DECISION

This matter is before the Court on Petitioner Kermit B. Harris’ objections to the
Magistrate’s Report and Recommendation (“R&R”) filed May 11, 2018.

For the

following reasons, Harris’ objections are OVERRULED. This Court ADOPTS the R&R
of the Magistrate Judge and DISMISSES Harris’ Petition for Habeas Corpus filed
pursuant to 28 U.S.C. § 2254.
The R&R adequately states the factual and procedural background of the case.
(Doc. 12, p. 1-2.) Harris has not demonstrated any error in the background as set forth by
the Magistrate. Therefore, the Court will not reiterate that section herein.
I.

STANDARD OF REVIEW
If a party files written objections to a magistrate judge’s report and

recommendation, a judge must perform a de novo review of “those portions of the report
or specified proposed findings recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
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II.

LAW AND ANALYSIS
Harris filed the instant habeas petition on October 5, 2017, setting forth three

grounds for relief. It is Harris’ third petition challenging his 1997 conviction, following
petitions filed by him in 2001 and 2010. The Magistrate found that the instant petition is
a successive habeas petition, and should be dismissed because Harris filed it without first
obtaining permission from the Sixth Circuit as required by 28 U.S.C. § 2244(b)(3)(A).
In his objections, Harris contends that his habeas petition is not successive because
it challenges a new judgment imposed on resentencing. Specifically, Harris states that,
through counsel, he filed a motion for resentencing in the state trial court on March 23,
2015. Harris relies on Magwood v. Patterson, 561 U.S. 320, 331 (2010) in support of his
argument that his petition is not successive.
This Court agrees with the Magistrate that Harris’ argument lacks merit. Indeed,
Harris’ 2015 motion for resentencing was denied on the merits, and was also determined
to be barred by res judicata. As the Magistrate explained, this does not constitute a
resentencing as contemplated by Magwood. See 561 U.S. at 331-34. The state court did
not grant Harris’ motion for resentencing and therefore did not resentence Harris. As the
Magistrate explained, Harris’ construction of the law is nonsensical, because according to
him, a petitioner could continuously refresh the ability to properly file a habeas petition
by simply filing a motion for resentencing in the state court and then waiting for the
motion to be denied.” (Doc. 12, p. 5.)
Moreover, Harris’ instant habeas petition does not bring any claims that could not
have been brought in an earlier petition. See Banks v. Bunting, No. 5:13CV111472, 2013

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WL 6579036, at *6 (N.D. Ohio, Dec. 13, 2013). Thus, Harris has not stated any grounds
that would establish that his current petition is not successive petition.
Regarding a successive habeas petition, 28 U.S.C. § 2244(b)(3)(A) states:
Before a second or successive application permitted in this
section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing
the district court to consider the application.
Harris has not moved the Sixth Circuit for an order authorizing this Court to consider his
habeas petition.
Moreover, the Court notes that Harris’ “objections” to the R&R are a repetition of
the underlying argument to this Court in the original petition. “An ‘objection’ that does
nothing more than state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an ‘objection’ as that term is used in
this context.” Aldrich v. Block, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004). Given this,
and for all of the reasons stated herein, Harris has not demonstrated error by the Magistrate
Judge. Accordingly, his objections are OVERRULED.
III.

CONCLUSION
For the reasons set forth herein, the Court finds no merit to Harris’ objections.

Therefore, his objections are OVERRULED. The Court ADOPTS the Magistrate’s R&R
(Doc. 12). The Petition for Habeas Corpus is DISMISSED.
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. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b).

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IT IS SO ORDERED.
_ s/John R. Adams___________________
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE

DATED: __7/24/18___________________

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