Bertuzzi v. Harris
Filing
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Memorandum of Opinion and Order: For the reasons set forth herein and for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore, the Court certifies, purs uant 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 7/30/18. (LC,S) re 21
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Raymond D. Bertuzzi,
Petitioner,
vs.
Chae Harris, Warden,
Respondent.
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CASE NO. 3:16 CV 1897
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge James Knepp, II (Doc. 21) which recommends denial of the Petition for Writ of Habeas
Corpus pending before the Court. Petitioner filed objections to the recommendation. For the
following reasons, 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, “The judge must determine de novo any proposed finding or recommendation to which
objection is made. The judge may accept, reject, or modify any proposed finding or
recommendation.”
Discussion
Petitioner is incarcerated after being found guilty by a jury of aggravated murder and
aggravated burglary. The Petition asserted ten grounds for relief. The Magistrate Judge
determined that Grounds One through Three are non-cognizable, procedurally defaulted, or
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meritless; Ground Four is procedurally defaulted and non-cognizable; Ground Five fails on the
merits; and Grounds Six through Ten are procedurally defaulted. Petitioner presents objections
to all these bases.
Grounds One through Three assert violations of the Ohio and United States Constitutions
based on prosecutorial misconduct, prejudicial hearsay, and ineffective assistance of counsel,
respectively. Ground Four asserts that the combination of these errors prevented a fair trial in
violation of the Ohio and United States Constitutions. The Magistrate Judge found the first three
claims non-cognizable to the extent they alleged violations of the Ohio Constitution. To the
extent they alleged federal constitutional violations, he found them to be procedurally defaulted
and to fail on the merits. Ground Four was found to be non-cognizable as a cumulative error
claim has not been found to be a basis for issuance of a writ of habeas corpus. Alternatively, it
was procedurally defaulted.
Petitioner objects that the grounds were found to be non-cognizable even though claims
of this nature have been found to rise to fundamental unfairness warranting federal habeas
review. However, the claims allege violations of the Ohio and federal constitutions and the
Magistrate Judge correctly found them non-cognizable only to the extent they asserted violations
of the Ohio constitution. The Magistrate Judge analyzed the claims to the extent they alleged
violations of the federal constitution. Petitioner objects to the finding that the grounds were
procedurally defaulted because he did not fairly present the claims to the Ohio Supreme Court
but only presented them in a conclusory manner. Petitioner maintains that a memorandum in
support of jurisdiction before the Ohio Supreme Court need only present the issues and if the
court had accepted jurisdiction, he would have expanded the issues in a full brief. But, a
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memorandum in support of jurisdiction does require a thorough explanation of constitutional
questions involved and concise arguments in support of propositions of law. Accordingly, the
Court agrees that these grounds are procedurally defaulted. The Magistrate Judge also reached
the merits of Grounds One through Three. He thoroughly reviewed the state appellate court
decision as to these claims and concluded that it was not contrary to, or an unreasonable
application of, federal law. Petitioner’s contentions are not persuasive.
The ineffective assistance of appellate counsel claim, Ground Five, was found to fail on
the merits given that the state court decision as to this claim was not contrary to, nor an
unreasonable application of, federal law. The Magistrate Judge agreed with the state court that
an appellate attorney is not required to raise all issues on appeal. Additionally, petitioner could
not show that had the two issues his attorney failed to raise been raised, there would have been a
different result of his appeal. Petitioner argues that the Magistrate Judge did not review the claim
properly, but only “parroted” the findings of the state appellate court. As the Magistrate Judge
noted, however, judicial review of an ineffective assistance of counsel claim under the AEDPA
is “doubly deferential,” and petitioner’s arguments simply do not warrant a finding contrary to
the conclusion of the Magistrate.
Grounds Six through Ten (which involve claims based on ineffective assistance of
counsel, a clerical docket “snafu,” an affidavit, juror misconduct, and “conflict with evidence
and judgment”) were determined to be procedurally defaulted given that petitioner did not timely
raise these claims before the state courts. The Magistrate Judge found Grounds Seven and Ten to
also be non-cognizable. Despite petitioner’s objections, the Court finds no error in the Magistrate
Judge’s conclusion that it was petitioner’s own mis-captioning of his post-conviction petition
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(where he attempted to assert these claims) which caused it to not be timely filed in the correct
court. Petitioner then failed to timely appeal the denial of the post-conviction petition to the Ohio
Supreme Court. The Court agrees the claims are procedurally defaulted.
Conclusion
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore, 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).
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 7/30/18
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