Bowen v. Watson

Filing 12

Memorandum of Opinion and Order Having overruled each of Petitioner's objections (ECF No. 11 ) to the Magistrate Judge's Report and Recommendation, the Court adopts the Magistrate Judge's Report and Recommendation (ECF No. [9 ]) and denies Petitioner's petition for habeas corpus (ECF No. 1 ). 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 Benita Y. Pearson on 8/29/2024. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT BOWEN,

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Petitioner,
v.
WARDEN TOM WATSON,
Respondent.

CASE NO. 5:23-CV-407
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER
[Regarding ECF No. 11]

Pending before the Court is Petitioner Robert Bowen’s Objection to Report and
Recommendation. ECF No. 11. For the following reasons, the Court overrules Petitioner’s
objections, adopts the magistrate judge’s Report & Recommendation (ECF No. 9), and denies
the petition (ECF No. 1).
I.

Background

In June 2018, a Holmes County Court of Common Pleas Grand Jury indicted Petitioner
Robert Bowen 1 charging him with one count of rape and four counts of sexual battery. ECF No.
6-1 at PageID #: 78–79. After trial, a jury found Petitioner guilty of each of the charges in the
indictment. ECF No. 6-1 at PageID #: 84. The court sentenced Petitioner to ten years in prison.

1

Petitioner is an individual currently incarcerated at North Central Correctional
Institution, located in Marion, Ohio, which is within the Northern District of Ohio. See
Ohio Department of Rehabilitation & Correction – Offender Details,
https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A761449 (last visited
August 29, 2024).

(5:23-CV-407)
ECF No. 6-1 at PageID #: 91. Petitioner, through counsel, appealed his conviction to the Ohio
Court of Appeals, setting forth four assignments of error. Petitioner claimed:
I.

The State of Ohio failed to produce sufficient evidence to convict the appellant of
the counts in the indictment in violation of his right to due process under the Fifth
amendment made applicable to all state criminal prosecutions by the Fourteenth
Amendment to the federal Constitution.

II.

The convictions in this matter are not supported by the manifest weight of the
evidence [in violation] of the appellant’s right to due process guaranteed by the
Fourteenth Amendment to the federal Constitution.

III.

The trial court abused its discretion in imposing a punitive discovery sanction that
was not the least restrictive and was violative of his due process rights under the
Fifth Amendment made applicable to the state prosecutions by the Fourteenth
Amendment to the federal Constitution.

IV.

The trial court committed error by allowing discussion of a CVSA test and
violated Appellant’s right to Due Process guaranteed to him under the Fifth
Amendment to the federal Constitution made applicable to state criminal
prosecutions by the Fourteenth Amendment.

ECF No. 6-1 at PageID #: 103. The state opposed Petitioner’s claims. The court of appeals
overruled the assignments of error and affirmed the trial court’s judgment. ECF No. 6-1 at 157.
In May 2020, the Ohio Supreme Court declined to exercise jurisdiction. ECF No. 6-1 at PageID
#: 221.
On July 29, 2020, Petitioner filed a petition to set aside or vacate his conviction with the
trial court. ECF No. 6-1 at PageID #: 223. He raised two issues:
I.

Petitioner was denied his right to a fair trial when the trial court introduced an
involuntary confession taken by the police in violation of the Fifth Amendment,
Sixth Amendment and made applicable to the state of Ohio by the Fourteenth
Amendment.

II.

Petitioner was denied due process guaranteed by the federal Constitution and
made applicable to the states by the Fourteenth Amendment when the trial court
judge showed actual bias towards him.

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(5:23-CV-407)
ECF No. 6-1 at PageID #: 227, 230. The trial court denied the post-conviction petition. ECF
No. 6-1 at PageID #: 316. Petitioner appealed the decision to the Ohio court of appeals, which
affirmed the trial court’s decision. ECF No. 6-1 at PageID #: 319, 359. Petitioner then appealed
the decision to the Ohio Supreme Court. ECF No. 6-1 at PageID #: 372. On March 23, 2022,
the Ohio Supreme Court declined to accept jurisdiction of Petitioner’s appeal. ECF No. 6-1 at
PageID #: 386.
On March 1, 2023, Petitioner filed the instant habeas petition, ECF No. 1, in which he
brings five grounds for relief:
I.

The state of Ohio failed to produce sufficient evidence to convict the [Petitioner] of
the counts in the indictment in violation of his right to due process under the Fifth
Amendment made applicable to all state criminal prosecution by the Fourteenth
Amendment to the federal Constitution.

II.

The convictions in this matter are not supported by the manifest weight of the
evidence [in violation] of the [Petitioner’s] right to due process guaranteed by the
Fourteenth Amendment to the federal Constitution.

III.

The trial court abused its discretion in imposing a punitive discovery sanction that
was not the least restrictive and was violative of his due process rights under the Fifth
Amendment made applicable to the state prosecution by the Fourteenth Amendment
to the federal Constitution.

IV.

The trial court committed error by allowing discussion of a CVSA test and violated
Appellant’s right to due process guaranteed to him under the Fifth Amendment to the
federal Constitution made applicable to state criminal prosecutions by the Fourteenth
Amendment.

V.

Petitioner was denied his right to a fair trial when the trial court introduced an
involuntary confession taken by the police in violation of the Fifth Amendment, Sixth
Amendment and made applicable to the state of Ohio by the Fourteenth Amendment.

ECF No. 1 at PageID #: 7, 10, 15, 17, 20. The habeas petition was referred to a magistrate judge
for preparation of a report and recommendation, pursuant to 28 U.S.C. § 636 and Local Rule
72.2(b)(2). On November 28, 2023, the magistrate judge issued a Report and Recommendation.
ECF No. 9. Specifically, the magistrate judge recommends: “(i) Ground One be denied as
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meritless; (ii) Ground Two be dismissed as procedurally defaulted; (iii) Ground Three be denied
as meritless; (iv) Ground Four be dismissed as procedurally defaulted and/or noncognizable; and
(v) Ground Five be dismissed as procedurally defaulted.” ECF No. 9 at PageID #: 830.
Petitioner filed an objection to the Report and Recommendation, in which he lodges an
objection for each ground for relief. 2 ECF No. 11.
II.

Standard of Review

When a petitioner makes an objection to a magistrate judge’s Report and
Recommendation, the district court’s standard of review is de novo. Fed. R. Civ. P. 72(b)(3). A
district judge:
must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge
may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with
instructions.
Id. Importantly, objections “must be specific in order to trigger the de novo review.” Bulls v.
Potter, No. 5:16-CV-02095, 2020 WL 870931, at *1 (N.D. Ohio Feb. 21, 2020) (citing Fed. R.
Civ. P. 72(b)(2)). “An ‘objection’ that does nothing more than state a disagreement with a
magistrate [judge’s] suggested resolution, or simply summarizes what has been presented before,
is not an ‘objection’ as that term is used in this context.” Spring v. Harris, No. 4:18-CV-2920,
2022 WL 854795, at *4 (N.D. Ohio Mar. 23, 2022) (quoting Aldrich v. Bock, 327 F. Supp. 2d
743, 747 (N.D. Ohio 2022)). “A party disappointed with the magistrate judge's recommendation
has a ‘duty to pinpoint those portions of the magistrate [judge's] report that the district court must

2

Petitioner filed his objection on January 9, 2024. His objection was timely
because the Court granted his motion for an extension of time to file objections. See ECF
No. 10; Order [non-document], 12/11/2023.
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specially consider.’” Id. (quoting Enyart v. Coleman, 29 F. Supp. 3d 1059, 1068 (N.D. Ohio
2014)). “A general objection to the entirety of [a Report and Recommendation]” or “an exact
recitation of arguments previously raised” will fail to “meet the specificity requirement for
objections.” Potter, 2020 WL at *1.
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a writ of habeas corpus may not be granted unless the state
court proceedings: (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)
–(2); see also Wilson v. Sheldon, 874 F.3d 470, 474–75 (6th Cir. 2017).
A federal court may review a state prisoner’s habeas petition only on the grounds that the
challenged confinement violates the Constitution, laws or treaties of the United States. 28
U.S.C. § 2254(a). “A federal court may not issue the writ on the basis of a perceived error of
state law.” Nguyen v. Warden, N. Cent. Corr. Inst., No. 19-3308, 2019 WL 4944632, at *4 (6th
Cir. July 24, 2019) (quoting Pulley v. Harris, 465 U.S. 37, 41 (1984)). Because state courts are
the final authority on state-law issues, the federal habeas court must defer to and is bound by the
state court’s rulings on such matters. See Mason v. Nagy, No. 21-1040, 2021 WL 6502177, at *3
(6th Cir. July 27, 2021) (quoting Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)) (stating that “it
is not the province of a federal habeas court to reexamine state-court determinations on state-law
questions”); see also Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008) (stating that “[a]
violation of state law is not cognizable in federal habeas corpus unless such error amounts to a

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fundamental miscarriage of justice or a violation of the right to due process in violation of the
United States Constitution”).
III.

Discussion

A. Ground One
Petitioner objects to the magistrate judge’s finding that there was sufficient evidence to
convict him because his alleged confession was the only evidence. ECF No. 11 at PageID #:
838. Petitioner also argues that the state court is not entitled to deference because no fair-minded
jurist would find its sufficiency of evidence findings to be reasonable. ECF No. 11 at PageID #:
839.
Petitioner generally challenges the magistrate judge’s conclusion as to deference and the
sufficiency of the evidence. Therefore, these objections are not proper objections that require the
trial court’s review. See Spring v. Harris, No. 4:18-CV-2920, 2022 WL 854795, at *4 (N.D.
Ohio Mar. 23, 2022) (“An ‘objection’ that does nothing more than state a disagreement with a
magistrate [judge’s] suggested resolution . . . is not an ‘objection’ as that term is used in this
context.”)
Petitioner also challenges the magistrate judge’s reliance on Tucker v. Palmer, 541 F.3d
652 (6th Cir. 2008). ECF No. 11 at PageID #: 839. Petitioner attempts to distinguish the factual
background of his case from that of Tucker. 3 The Sixth Circuit, however, has stated: “[e]ven
assuming that [the victim’s] testimony was the only evidence of [petitioner’s] guilt . . . this court
has held that the testimony of a rape victim alone is sufficient to support a defendant’s

3

In Tucker, the petitioner was charged with and convicted of second-degree home
invasion. 541 F.3d at 656. The Court relied on evidence that the victim saw the petitioner
jump out of the victim’s backyard and flee, alongside circumstantial evidence. Id. at 658.
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conviction.” United States v. Howard, 218 F.3d 556, 565 (6th Cir. 2000). Therefore, the
magistrate judge’s reliance on Tucker was reasonable.
Accordingly, the Court overrules this objection.
B. Ground Two
Petitioner’s second objection purports to argue “manifest weight argument is a valid
constitutional argument.” ECF No. 11 at PageID #: 839. Petitioner concedes that under Sixth
Circuit precedent his manifest weight argument is a non-cognizable, state law claim. ECF No.
11 at PageID #: 840. Petitioner attempts to point out his concern with the law, but he does not
challenge the magistrate judge’s analysis. The Court construes this argument as a new argument
that was not presented to the magistrate judge that the Court may not address. See Murr v.
United States, 200 F.3d 895, 902, n.1 (6th Cir. 2000) (“Courts have held that while the
Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if
timely objections are filed, absent compelling reasons, it does not allow parties to raise at the
district court stage new arguments or issues that were not presented to the magistrate [judge].”)
Therefore, the Court overrules this objection.
C. Ground Three
Petitioner’s third objection claims “the discovery sanction violated Petitioner’s right to
due process.” ECF No. 11 at PageID #: 840. Petitioner objects to the magistrate judge’s
rejection of his argument that Ohio Court of Appeals’ decision was unreasonable. ECF No. 11 at
PageID #: 841. Petitioner does not argue that he satisfies the Chapman or Brecht standards.
Instead, he asserts, yet again, that he was denied the right to a fair trial, the argument submitted
and considered by the magistrate judge. ECF No. 11 at PageID #: 841; ECF No. 9 at PageID #:

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816–20. This is insufficient to assert a proper objection. Therefore, the Court overrules this
objection.
D. Ground Four
Petitioner’s objection to the fourth ground for relief asserts “the trial court should not
have allowed mention of the CVSA.” ECF No. 11 at PageID #: 841. Petitioner concedes that
this claim is procedurally defaulted because he did not contemporaneously object to the mention
of the CVSA at trial. ECF No. 11 at PageID #: 842. He contends that he has overcome the
procedural default because he has provided “record evidence that he is innocent.” ECF No. 11 at
PageID #: 842.
The “record evidence” that Petitioner refers to is an affidavit attached to his postconviction petition. ECF No. 6-1 at PageID #: 271. In this affidavit, Petitioner “denies abusing
either adopted child in his care at any time.” ECF No. 6-1 at PageID #: 272. This affidavit was
submitted to the magistrate judge, as part of the Return of Writ, who determined that this
evidence did not establish Petitioner’s actual innocence. ECF No. 9 at PageID #: 823. Because
this information was previously submitted and considered by the magistrate judge, this is not a
proper objection.
Furthermore, the Court must determine “whether no reasonable juror would find the
petitioner guilty” based on the entire record, while considering this new evidence. Hubbard v.
Rewerts, 98 F.4th 736, 743 (6th Cir. 2024). The Court does not make such a finding. The Court
also notes that defense counsel brought up the CVSA, and the prosecution objected to discussion
of CVSA because it was not admissible. ECF No. 6-6 at PageID #: 625. Therefore, Petitioner’s
the Court overrules this objection.
E. Ground Five
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Petitioner’s final objection is to the magistrate judge’s finding that res judicata barred his
final claim for relief. ECF No. 11 at PageID #: 843. Petitioner argues that the magistrate judge
incorrectly found that Petitioner cited no evidence from outside the record regarding the
voluntariness of his confession. Petitioner points to submitted affidavits as evidence outside of
the record. 4 ECF No. 11 at PageID #: 843. The magistrate judge, albeit in a footnote, stated:
The affidavit from Bowen’s mother, attached to his petition for postconviction relief, was not the type of evidence which would have
triggered de novo review of the merits in the consideration of the
post-conviction petition, because it merely supplemented arguments
that Bowen made or could have made on direct appeal. See, e.g.,
Hand, 871 F.3d at 409.
ECF No. 9 at PageID #: 828. Therefore, the magistrate judge considered the affidavit from
Petitioner’s mother and found that it did not preclude the application of res judicata.
Furthermore, even if Petitioner lodged a proper objection as it pertains to his affidavit,
Petitioner’s arguments fail to establish that “his state post-conviction petition contained new,
not-previously-available evidence, and the Ohio Court of Appeals erroneously rejected that
evidence.” Jones v. Bradshaw, 46 F.4th 459, 487 (6th Cir. 2022). In that case, the Sixth Circuit
stated that “affidavits from individuals who merely claim they would have testified at trial or
provided more information if asked.” Id. at 486 (citing Wogenstahl v. Mitchell, 668 F.3d 307,
341–42 (6th Cir. 2012)). Therefore, Petitioner fails to demonstrate that the Ohio courts
improperly applied res judicata.
Accordingly, Petitioner’s fifth objection is overruled.

4

Petitioner points the Court to one affidavit that he submitted and one submitted
by his mother.
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IV.

Conclusion

Having overruled each of Petitioner’s objections to the magistrate judge’s Report and
Recommendation, the Court adopts the magistrate judge’s Report and Recommendation (ECF
No. 9) and denies Petition’s petition for habeas corpus (ECF No. 1).
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.
August 29, 2024
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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