Culp v. Lazaroff
Filing
31
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 and dismi ssed. 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). Judge Patricia A. Gaughan on 9/10/20. (LC,S) re 30 , 1 Modified on 9/10/2020 (LC,S).
Case: 5:17-cv-00852-PAG Doc #: 31 Filed: 09/10/20 1 of 3. PageID #: 1883
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Richard Alan Culp,
Petitioner,
Vs.
Alan J. Lazaroff, Warden
Respondent.
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CASE NO. 5:17 CV 852
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge William H. Baughman, Jr. (Doc. 30) which recommends denial and dismissal of the Petition
for Writ of Habeas Corpus pending before the Court. Petitioner has not 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
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recommendation. ”When no objections have been filed this Court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation. See Advisory
Committee Notes 1983 Addition to Federal Rule of Civil Procedure 72.
Discussion
Petitioner is incarcerated following his convictions of five counts of rape and one count of
kidnapping with repeat offender and sexually violent specifications. The Petition for Writ of
Habeas Corpus asserts six grounds for relief. The Magistrate Judge recommended that Grounds
One, Two, and Four be denied on the merits; Ground Six be dismissed as procedurally defaulted;
and Grounds Three and Five be dismissed as non-cognizable. As petitioner did not file objections,
the Court has reviewed for clear error. Having found no such error, the recommendation is
accepted in full.
Ground One contends that petitioner’s due process rights were violated when
the trial court admitted photographs of his Nazi paraphernalia. Ground Two asserts that
there was insufficient evidence to support the convictions for rape and kidnapping. Ground
Four alleges that the finding that petitioner is a sexually violent offender is not supported by
sufficient evidence. The Magistrate Judge concluded that the Ohio courts’ findings addressing
these claims were not contrary to, or involving an unreasonable application of, the clearly
established federal law.
In Count Six, petitioner asserted ineffective assistance of appellate counsel on direct
review. The Magistrate Judge found the claim to be procedurally defaulted because petitioner did
not raise the claim to the Ohio courts. Nor did petitioner excuse the default.
Count Three was found to be non-cognizable given that it was a manifest weight of the
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Case: 5:17-cv-00852-PAG Doc #: 31 Filed: 09/10/20 3 of 3. PageID #: 1885
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