Clay v. Miller

Filing 20

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, which is incorporated herein, the Petition for Writ of Habeas Corpus is denied. Furtherm ore, 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). Judge Patricia A. Gaughan on 7/14/17. (LC,S) re 18

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Larrence Major Clay,
Petitioner,
vs.
Michele Miller, Warden
Respondent.

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CASE NO. 5:16 CV 525
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Ruiz (Doc. 18) 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

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proposed finding or recommendation.”
Discussion
Petitioner was indicted by a Summit County Grand Jury in 2012 for one count of
aggravated murder with a firearm specification, one count of murder with a firearm
specification, and one count of having weapons while under disability. At Petitioner’s first
jury trial, a jury found him guilty of having weapons while under disability and not guilty of
aggravated murder, but it was unable to reach a verdict on the murder count. The court
declared a hung jury. At Petitioner’s second jury trial, a jury found him guilty of murder and
the accompanying firearm specification. The Report and Recommendation discusses
Petitioner’s state court proceedings.
Petitioner’s federal habeas petition asserts four grounds for relief. The Magistrate
Judge noted that all four grounds are procedurally defaulted but did not recommend
dismissing the petition on this basis because Respondent did not argue that any of the grounds
for relief are procedurally defaulted. The Magistrate Judge, however, found that Grounds One
and Four are not cognizable in federal court. Even if they were cognizable, he concluded that
they were not supported by the evidence presented in the state court proceedings. The
Magistrate Judge found that Ground Two failed on the merits because Petitioner did not show
that a constructive amendment or variance to his indictment occurred at trial. The Magistrate
Judge found that Petitioner waived Ground Three because he did not set forth any argument
or facts developing it. As such, the Magistrate Judge recommended dismissing the petition.
The only specific portion of the Report and Recommendation that Petitioner addresses
in his Objection is related to the Magistrate Judge’s discussion of an alleged statement by

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Petitioner’s father:
As best this Court can decipher, Petitioner states that sometime after the
shooting, police officers arrived at his residence and found him smelling of
bleach. When officers inquired why Petitioner smelled of bleach, Petitioner
responded that his father had asked him to clean the tub. Clay takes issue with
a police report suggesting that Clay’s father denied asking his son to clean the
tub. Despite the Court’s extensive review of the briefs and the State court
filings, it is not entirely clear whether Clay’s position is that his father never
made such a statement or whether Clay is simply arguing that the State could
not produce written documentation that such a statement was made.
(R&R at 11-12) (citations omitted). The Magistrate Judge noted that Petitioner did not submit
any evidence that the State presented his father’s statement as evidence at the second trial, the
trial for which Petitioner was convicted of murder. In any event, the Magistrate Judge
concluded that the issue was moot, or at the very least insignificant, because particles highly
indicative of gunshot primer residue were found on Petitioner’s washcloth and shorts. Thus,
regardless of which theory Petitioner was presenting, he failed to show that his conviction
was contrary to or involved an unreasonable application of clearly established federal law, or
was based on an unreasonable determination of the facts in light of the evidence presented.
In his Objection, Petitioner clarifies that his position is that his father “never made any
statement concerning this case.” (Objection at 3). As the Magistrate Judge explained,
however, this issue is irrelevant because Petitioner has presented no evidence that his father’s
alleged statement was presented at his second trial and the positive presence of gunshot
residue renders moot the issue of why Petitioner was wet and smelling of bleach not long
after the shooting.
Petitioner has raised no other specific objections to the Report and Recommendation.
Thus, for the reasons stated herein and in the Magistrate Judge’s Report and

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Recommendation, Petitioner’s Objection is overruled.
Conclusion
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, which is incorporated herein, 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: 7/14/17

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