Crank v. Bracy

Filing 33

Order Adopting Report and Recommendation. The Court has reviewed the Report and Recommendation and carefully considered Crank's Objections. For the reasons stated above, Crank's Objections, Doc #: 32 , are overruled. The Report and Recommendation, Doc #: 29 , is adopted in full. Signed by Judge Dan Aaron Polster on 5/8/2018. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHESTER RAY CRANK,
Petitioner,
vs.
CHARMAINE BRACY, Warden,
Respondent.

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CASE NO. 5:16-CV-2001
JUDGE DAN AARON POLSTER
ORDER ADOPTING REPORT
AND RECOMMENDATION

Before the Court is the Report and Recommendation of Magistrate Judge Kathleen B.
Burke (“R&R”), Doc #: 29, and Petitioner Chester Ray Crank’s Objections to the Magistrate
Judge’s Report & Recommendation (“Objections”), Doc #: 32. For the reasons below, the R&R
is adopted in full.
I.

Procedural History
On August 10, 2016, Crank filed his Petition pursuant to 28 U.S.C. § 2254. Doc #: 1. He

filed an Amended Petition1, with leave of Court, on August 17, 2017. Doc #: 24. In his Petition,
Crank raised eight grounds for relief. Respondent filed a Return of Writ on March 10, 2017,

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His Amended Petition supplemented his original Petition with two additional grounds for relief.
The Court will refer to his Petition and Amended Petition collectively as “Petition.”

Doc #: 10, and a Supplemental Return of Writ on October 2, 2017, Doc #: 25. On November 3,
2017, Crank filed his Traverse. Doc #: 26. Respondent filed her Reply on January 31, 2018.
Doc #: 28. Magistrate Judge Burke issued her R&R on March 12, 2018, recommending that the
Court deny Crank’s Petition on all grounds. Doc #: 29. Crank filed a motion for extension of
time to file his objections, Doc #: 30, which the Court granted in part. 3/26/2018 Order [NonDocument]. The Court granted Crank an additional extension of time to file his objections in
response to his Motion for Reconsideration, Doc #: 31. 4/3/2018 Order [Non-Document]. Crank
filed his Objections on April 23, 2018. Doc #: 32.
II.

Legal Standard
After a report and recommendation has been issued, the district court reviews de novo

“those portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). “A general objection, or one that merely restates the
arguments previously presented is not sufficient to alert the court to alleged errors on the part of
the magistrate judge.” VanDiver v. Martin, 304 F. Supp. 2d 934, 937 (E.D. Mich. 2004). A
plaintiff waives his right to review of the remaining portions of a report and recommendation to
which he did not specifically object. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir.2005);
Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472, 88 L. Ed. 2d 435 (1985) (“It does not
appear that Congress intended to require district court review of a magistrate's factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.”)
III.

Discussion
At the outset, Crank objects to Magistrate Judge Burke “remaining on his case.” This
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objection is moot because the case is no longer referred to Magistrate Judge Burke and is now
fully before the Court. Additionally, Crank objects to Magistrate Judge Burke’s
recommendations on each of his eight grounds for relief. The Court will only address arguments
that Crank did not previously make in his Petition or Traverse. Crank’s objections to Magistrate
Judge Burke’s recommendations on Grounds One, Four, and Six are recitations of his previous
arguments. Thus, the Court will not address these objections and overrules them.
A.

Ground Two

Crank makes a sufficiency of the evidence argument for his second ground for relief.
Crank’s Objections make one new argument: that Magistrate Judge Burke did not use the
appropriate standard of review for a habeas court reviewing a claim of insufficiency of evidence
in a state criminal proceeding. Mot. 9. He argues that the appropriate standard is to review all
the evidence not just, as the R&R states, “view[] the evidence in light most favorable to the
prosecution.” Id. He cites Alder v. Burt, 240 F. Supp. 2d 651 (E.D. Mich. 2003) in support. Id.
But Alder recites the same standard as the R&R. See Alder, 240 F. Supp. at 662 (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (explaining that a reviewing court should “consider[] the
evidence in the light most favorable to the prosecution[.]”). The Court finds that Magistrate
Judge Burke properly stated the law. Crank’s Objections on Ground Two are overruled.
B.

Ground Three

Crank objects to Magistrate Judge Burke’s recommendation on Ground Three because it
is “erroneous and fails to take into consideration the proper standard of law.” Mot. 11. The
Court disagrees. The Ohio Court of Appeals reviewed Detective George’s testimony and found
that the trial court’s error was harmless. R&R 27. The R&R properly states the standard of law
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under which a reviewing court must consider a state court’s harmless error determination of a
constitutional trial error. Id. Thus, Crank’s Objections to Ground Three are overruled.
C.

Ground Five

Crank next argues that he did not receive a fair trial due to the cumulative errors that
occurred during trial, as set forth in Grounds Three and Four. Pet. 10. Magistrate Judge Burke
recommended that the Court deny relief under Ground Five because “cumulative error is not a
cognizable claim for federal habeas relief in this circuit.” R&R 32 (citing Williams v. Anderson,
460 F.3d 789, 816 (6th Cir. 2006). Crank objects to Magistrate Judge Burke’s recommendation,
arguing that the R&R misstates the law. Obj. 13. He cites Parle v. Runnels, 505 F.3d 922 (9th
Cir. 2007) as the “clearest contradiction” to the R&R. Id. However, Parle is a Ninth Circuit
case and is not controlling authority in this circuit. The R&R correctly states the controlling law
of the Sixth Circuit that cumulative error is not a cognizable claim for federal habeas relief.
Thus, the Court overrules Crank’s Objections on Ground Five.
D.

Ground Seven

In Ground Seven, Magistrate Judge Burke determined that the Ohio Court of Appeals’
finding that trial counsel was effective was not unreasonable. A state witness, Robert Race,
testified that Crank came to Race’s house and bragged about getting away with murder.
R&R 36. In Race’s witness statement, he stated that this occurred on December 25, 2012. Id.
But Crank was incarcerated during at that time. Id. He alleged that his trial counsel was
ineffective for failing to challenge Race’s testimony. Id. The Ohio Court of Appeals determined
that Crank could not show prejudice required for an ineffective assistance claim. Id. Magistrate
Judge Burke found that the Ohio Court of Appeals’ decision was not unreasonable. Id. at 39.
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She determined that his trial counsel’s decision not to bring up a prior incarceration was a valid
trial strategy. Id. at 38.
Crank objects to this finding as contrary to Magistrate Judge Burke’s recommendation on
Ground Six. Obj. 16. In Ground Six, Magistrate Judge Burke found that trial counsel’s decision
to tell the jury that Crank was incarcerated pending trial was not prejudicial. R&R 36. He argues
that Magistrate Judge Burke’s contrary findings on Grounds Six and Seven show an
unreasonable and inconsistent application of law. Obj. 17. The Court disagrees. As set forth in
the R&R, Crank’s trial counsel used evidence of his incarceration prior to trial to show that
Crank possessed no information that could help the state. R&R 36. Magistrate Judge Burke
rightly determined that this was reasonable trial strategy. Crank’s trial counsel chose not to bring
up his incarceration on an unrelated offense to avoid introducing Crank’s offense record to the
jury. R&R 38. Again, as Magistrate Judge Burke points out, this is reasonable trial strategy.
Thus, R&R consistently and appropriately applies the law in both Grounds Sex and Seven.
Crank also argues that Magistrate Judge Burke’s determination that Race’s testimony was
cumulative to other witness testimony was misguided. Obj. 17. He states that “every bit of
testimony could have contributed to the verdict” making the error not harmless. Id. However,
Crank must show prejudice to establish an ineffective assistance claim. He cannot show that he
was prejudiced by his counsel’s failure to address the inconsistency in Race’s testimony because
Race was not the only witness who testified that Crank confessed to him. Thus, his Objections
on Ground Seven are overruled.
E.

Ground Eight

In Ground Eight, Crank argues that his post-conviction petition was improperly denied
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for two reasons. Pet. 12. First, he argues that the trial court improperly denied his petition
because it lacked evidentiary support. Id. But the trial court denied him the expert assistance
needed to acquire the requisite evidentiary support. Id. The R&R determined that “such a claim
is not cognizable because any alleged errors in post-conviction proceedings are outside the scope
of federal habeas review.” R&R 46 (citing Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007)).
Second, Crank argues that the trial court improperly applied a res judicata bar to his ineffective
assistance of counsel claim. Id. But as Magistrate Judge Burke points out, the Ohio Court of
Appeals found that Crank’s claims were not barred by res judicata. R&R 46. Crank objects to
the R&R on the grounds that Magistrate Judge Burke did not address his ineffective assistance of
trial counsel argument. Obj. 21. This objection is not well-taken. The R&R explains that Crank
addressed his ineffective assistance of counsel and evidentiary concerns to the state trial and
appellate courts in his post-conviction petition. The Court agrees with the R&R that errors in
post-conviction proceedings are outside the scope of federal habeas review. Thus, the Court
overrules Crank’s Objections on Ground Eight.
IV.

Conclusion
The Court has reviewed the R&R and carefully considered Crank’s Objections. For the

reasons stated above, Crank’s Objections, Doc #: 32, are OVERRULED. The R&R, Doc #: 29,
is ADOPTED IN FULL.
IT IS SO ORDERED.
/s/ Dan A. Polster May 8, 2018
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE

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