Armstrong v. Wainwright

Filing 25

Order Adopting 18 Report and Recommendation (R&R). The Petition 1 is denied, as is the Motion for Summary Judgment 15 . The Motion for Status Report 20 is denied as moot. Because Armstrong does not make a substantial showing of the denial of a constitutional right, this Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c). Judge Jack Zouhary on 4/17/2019. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Shawn Armstrong,

Case No. 1:18 CV 1133
ORDER ADOPTING
REPORT AND RECOMMENDATION

Petitioner,
-vs-

JUDGE JACK ZOUHARY

Warden Lyneal Wainwright,
Respondent.

INTRODUCTION
Petitioner pro se Shawn Armstrong seeks a writ of habeas corpus under 28 U.S.C. § 2254
(Doc. 1 at 1). In January 2015, Armstrong pled guilty in Ohio state court to drug trafficking and fraud
(Doc. 11-1 at 10). He is serving a seven-year sentence (id. at 58; Doc. 24 at 17). After seventeen
unsuccessful challenges to his conviction in state court (Doc. 11-1 at 53, 112, 236, 285–86, 288, 360,
366, 385, 387–89, 420, 431, 521, 541, 665), Armstrong filed his Petition in this Court in May 2018
(Doc. 1 at 1). The Petition asserts nine grounds for relief, including lack of jurisdiction (id. at 5),
judicial misconduct (Doc. 1-5 at 1), and ineffective assistance of counsel (Doc. 1-8 at 1).
Under Local Civil Rule 72.2(b)(2), the Petition was automatically referred to Magistrate
Judge Kathleen Burke. During the next six months, Armstrong filed seven Motions (Docs. 4–7, 9,
12, 15); Judge Burke resolved all but one (Non-Doc. Entry 10/19/2018; Doc. 18 at 31; Doc. 19). In
her Report and Recommendation (R&R), Judge Burke concludes that this Court should deny both the
Petition and Armstrong’s sole outstanding Motion, which requests summary judgment (Doc. 18 at
31). Armstrong filed a Memorandum objecting to those conclusions (Doc. 24).

ANALYSIS
This Court reviews objections to an R&R de novo. 28 U.S.C. § 636(b)(1). Blanket objections
to an R&R’s conclusions, however, do not trigger de novo review. Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nor do objections that are unclear or conclusory,
or that merely restate arguments already addressed by the R&R. See Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995); Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam). Failure to
raise proper objections waives review of the R&R by this Court and by the circuit court. Miller, 50
F.3d at 380; Howard, 932 F.2d at 509.
Here, the coherent portions of the Memorandum merely restate arguments rejected by the
R&R. For example, Armstrong insists that the trial court lacked jurisdiction over him (Doc. 24 at
16). The R&R already explained, however, that a state court’s jurisdiction is not reviewable under
the federal habeas statute (Doc. 18 at 15–16). Armstrong also contends that the trial judge forced his
attorney to withdraw a meritorious motion to suppress evidence (Doc. 24 at 8). But the R&R already
discarded that argument, reasoning that Armstrong lost the right to assert it when he voluntarily and
intelligently pled guilty (Doc. 18 at 20). On the same basis, the R&R rejects Armstrong’s claim -asserted in the Petition (Doc. 1-8 at 1) and repeated in the Memorandum (Doc. 24 at 13) -- that his
trial counsel was constitutionally ineffective due to his withdrawal of the suppression motion (Doc.
18 at 26). Armstrong attempts to nullify the preclusive effect of his guilty plea by stating, without
explanation or detail, that his attorney coerced him to plead guilty (Doc. 24 at 7, 13). But such an
unsupported, conclusory allegation does not rise to the level of a reviewable objection.
CONCLUSION
Armstrong does not meaningfully object to the R&R (Doc. 18). Accordingly, this Court
adopts the R&R in its entirety. The Petition (Doc. 1) is denied, as is the Motion for Summary
2

Judgment (Doc. 15). The Motion for Status Report (Doc. 20) is denied as moot. Moreover, because
Armstrong does not make a substantial showing of the denial of a constitutional right, this Court
declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
April 17, 2019

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