Linde v. Turner

Filing 14

Order Adopting Report and Recommendation (re 12 ). Signed by Judge Solomon Oliver, Jr on 3/31/2016. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT LINDE,
Petitioner
v.
NEIL TURNER, Warden,
Respondent

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Case No.: 5:14 CV 2799

JUDGE SOLOMON OLIVER, JR.

ORDER

On December 19, 2014, Petitioner Robert Linde (“Linde” or “Petitioner”) filed a Petition for
Writ of Habeas Corpus (“Petition”) (ECF No. 1) pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his state court conviction and sentence. Linde pleaded guilty to aggravated
robbery and aggravated burglary offenses. Linde argues that his Petition should be granted based
on the following four grounds:
Ground One: The trial court violated Petitioners [sic] Fifth Amendment [r]ight against
double jeopardy when it did not merge the offenses under allied offenses
under law.
Ground Two: The trial court violated Petitioners [sic] Fourteenth Amendment right of due
process of law as it sentenced him contrary to law and did not apply the
minimum sentence.
Ground Three:The trial court violated Petitioners [sic] Sixth Amendment and Fourteenth
Amendment [right] when it sentenced him to consecutive sentences for his
offenses.
Ground Four: Petitioners [sic] Sixth Amendment right to effective assistance of both trial
and appellate counsel was violated that lead [sic] to an improper conviction
and improper appeal.
(See generally Pet., ECF No. 1.) The court referred the case to Magistrate Judge Nancy A.
Vecchiarelli for preparation of a Report and Recommendation (“R&R”). Respondent Neil Turner,

Warden of North Central Correctional Institution in Marion, filed a Return of Writ on March 24,
2015 (ECF No. 5). In response, Petitioner filed a Traverse (ECF No. 8), with two corrected pages
added to the Traverse (ECF Nos. 9 and 10). The Magistrate Judge submitted her R&R (ECF No.
12) on March 4, 2016, recommending that the court dismiss the Petition with prejudice.
The Magistrate Judge determined that Petitioner’s first, second and third grounds for relief
were not fairly presented to the Ohio appellate court, and thus he had not satisfied the exhaustion
requirement. But the Magistrate Judge still considered the claims, finding them to be meritless. To
the extent that the first three grounds assert errors of state law, the R&R concluded that those claims
are not cognizable on federal habeas review. After analyzing Petitioner’s first ground for relief on
its merit, the Magistrate Judge concluded that “the state appellate court’s decision upholding Linde’s
cumulative sentences was neither contrary to, nor an unreasonable application of, Supreme Court
precedent, and did not include unreasonable determinations of fact in light of the evidence
presented.” (R&R at 21-22, ECF No. 12.)
In regard to the merits of Petitioner’s second and third grounds for relief, the Magistrate
Judge also decided that the state appellate court’s decision affirming imposition of non-minimum
and consecutive sentences was neither contrary to, nor an unreasonable application of, Apprendi v.
New Jersey, 530 U.S. 466 (2000) and the line of cases following it. For the ineffective assistance
of trial counsel portion of the fourth ground for relief, the Magistrate Judge concluded that Petitioner
procedurally defaulted this claim. In regard to the ineffective assistance of appellate counsel portion
of the fourth ground for relief, the R&R concluded that Petitioner’s claims are likely unexhausted
and procedurally defaulted, but even if they were addressed, the claims are meritless, because
Petitioner could not show that his appellate counsel’s performance was deficient and that the
deficient performance was prejudicial.
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On March 23, 2016, Petitioner filed his Objections to the R&R (“Objections”) (ECF No. 13),
objecting to the R&R on all grounds for relief. The Federal Magistrates Act requires a district court
to conduct a de novo review only of those portions of an R&R to which the parties have made an
objection. 28 U.S.C. § 636(b)(1) (2014). However, “[w]hen no timely objection is filed, the court
need only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72 advisory committee’s note. Furthermore, the failure to file
written objections to the R&R of a Magistrate Judge constitutes a waiver of a party’s right to appeal
the district court’s judgment. Thomas v. Arn, 474 U.S. 140, 145 (1985).
In the instant case, Petitioner has not filed timely objections to the R&R. On the day the
R&R was issued, the court served Petitioner with a copy by regular mail at his address of record.
The R&R itself indicated that Petitioner would have fourteen days within which to file any
objections. (ECF No. 12, at 27.) Nonetheless, Petitioner did not file his Objections until March 23,
2016 (ECF No. 13), five days after the deadline. Even though Petitioner’s objections are untimely,
and he has offered no reason why that is so, the court, out of an abundance of caution, will review
the Magistrate Judge’s R&R de novo.
The court finds that, after careful de novo review of the R&R and all other relevant
documents, the Magistrate Judge’s conclusions are fully supported by the record and controlling
case law. Accordingly, the court adopts the Magistrate Judge’s R&R (ECF No. 12) as its own.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
March 31, 2016

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