Miller v. Warden Lebanon Correctional Institution

Filing 14

DECISION AND ENTRY adopting Report and Recommendations of the United States Magistrate Judge (Doc. 9) and Terminating this Case in this Court. Signed by Judge Timothy S. Black on 2/19/19. (rrs)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SIR MICHAEL MILLER,
Petitioner,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

:
:
:
:
:
:
:
:

Case No. 1:16-cv-865
Judge Timothy S. Black
Magistrate Judge J. Gregory
Wehrman

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 9) and
TERMINATING THIS CASE IN THIS COURT
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge J. Gregory Wehrman. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court and submitted a Report and
Recommendation. (Doc. 9). Petitioner filed objections (“Objections”). 1
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does

1

The Objections are not well-taken. The Objections argue Petitioner’s claim is not procedurally
defaulted because “Petitioner’s counsel raised the required constitutionality of his claim,” but the
Objections do not cite any portion of the record in support of this argument. The Objections
argue that Petitioner’s counsel was ineffective in failing to object to errors during trial, but the
Magistrate Judge properly rejected that argument on the grounds that Petitioner did not raise the
ineffective assistance claim in his brief in the Supreme Court of Ohio. The Objections argue that
Petitioner’s claim succeeds on the merits, but the Magistrate Judge properly concluded that, in
light of other evidence at trial of Petitioner’s involvement in the underlying crimes, Petitioner
cannot show that any error resulting from the admission of statements at issue rendered his trial
fundamentally unfair. The Objections are OVERRULED.

determine that the Report and Recommendation should be and is hereby adopted in its
entirety. Accordingly:
1.

The Report and Recommendation (Doc. 9) is ADOPTED;

2.

The Objections (Doc. 12) are OVERRULED;

3.

Petitioner’s petition for a writ of habeas corpus (Doc. 3) is DENIED with
prejudice;

4.

No certificate of appealability shall issue;

5.

Pursuant to 28 U.S.C. § 1915(a)(3), any appeal of this Order would not be
taken in “good faith” and Petitioner is denied leave to appeal in forma
pauperis; and

6.

The Clerk shall enter judgment accordingly, whereupon this case is
TERMINATED on the docket of this Court.

IT IS SO ORDERED.
Date:

2/19/19

s/ Timothy S. Black
Timothy S. Black
United States District Judge

2