Romero v. Warden Chillicothe Correctional Institution

Filing 21

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 17 in that the 8 Motion to Dismiss filed by Warden Chillicothe Correctional Institution is GRANTED and Petitioner's Motion to Strike the Motion to Dismiss is DENIED.. Signed by Judge James L. Graham on 3/9/17. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
FRANCISCO ROMERO,
CASE NO. 2:16-CV-00600
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On January 23, 2017, the Magistrate Judge issued an Order and Report and
Recommendation denying Petitioner’s motion to strike the Motion to Dismiss (ECF No. 9), and
recommending that Respondent’s Motion to Dismiss (ECF No. 8) be granted and that this action
be dismissed. (ECF No. 17.) Petitioner has filed an Objection to the Magistrate Judge’s Report
and Recommendation. (ECF No. 20.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted
a de novo review.

For the reasons that follow, Petitioner’s Objection (ECF No. 20) is

OVERRULED. The Order and Report and Recommendation (ECF No. 17) is ADOPTED and
AFFIRMED. Petitioner’s motion to strike the Motion to Dismiss (ECF No. 9) is DENIED.
Respondent’s Motion to Dismiss (ECF No. 8) is GRANTED and this action is hereby
DISMISSED.
Petitioner challenges his convictions after a jury trial in the Franklin County Court of
Common Pleas on two counts of gross sexual imposition. He asserts that the evidence is
constitutionally insufficient to sustain his convictions and that his convictions are against the
manifest weight of the evidence; and that he was improperly convicted based on inadmissible

hearsay, victim-impact testimony, and cumulative error. The Magistrate Judge recommended
dismissal of Petitioner’s claims as procedurally defaulted and without merit.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of this action.
Petitioner again raises all of the arguments he previously presented. He claims that the trial
judge was biased and prejudiced against him, and that the proceeding against him were
fundamentally unfair. Petitioner further contends that the Ohio Supreme Court in State v.
Williams, -- Ohio St.3d --, 2016 WL 6646162 (Ohio Nov. 10, 2016), substantially limited
application of Ohio’s doctrine of res judicata, such that his procedural default of his claims does
not preclude federal habeas corpus review.
Petitioner’s arguments are not persuasive. The Ohio Supreme Court in Williams held
that, where the trial court improperly imposes separate sentences for allied offenses of similar
import, such sentences are void, and res judicata does not preclude a court from correcting such
sentences after direct appeal. Id. at *1. Such are not the circumstances here. Petitioner waived
his claims of insufficiency of the evidence and his claim that his sentences are against the
manifest weight of the evidence by failing to establish cause and prejudice for his failure to raise
such claims on direct appeal. Further, as noted by the Magistrate Judge, a claim that a conviction
is against the manifest weight of the evidence is not cognizable on federal habeas review. See
Williams v. Jenkins, No. 1:15-cv-00567, 2016 WL 2583803, at *7 (N.D. Ohio Feb. 22,
2016)(citing Nash v. Eberlin, 258 Fed.Appx. 761, 765 n. 4 (6th Cir. 2007)). Further, the record
fails to reflect that the state court’s evidentiary rulings constitute a basis for federal habeas
corpus relief. To the extent that Petitioner now claims prejudice or bias on the part of the state
trial court, Petitioner failed either to present such claim in his initial Petition, or to present such
claim to the state courts. This Court therefore will not now address such issue here.

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For the foregoing reasons and for the reasons detailed in the Magistrate Judge’s Order
and Report and Recommendation, Petitioner’s Objection (ECF No. 20) is OVERRULED. The
Order and Report and Recommendation (ECF No. 17) is ADOPTED and AFFIRMED.
Petitioner’s motion to strike the Motion to Dismiss (ECF No. 9) is DENIED. Respondent’s
Motion to Dismiss (ECF No. 8) is GRANTED and this action is hereby DISMISSED.
IT IS SO ORDERED.
Date: March 9, 2017
_______s/James L. Graham_____
JAMES L. GRAHAM
United States District Judge

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