Davidson v. Warden, Warren Correctional Institution

Filing 13

REPORT AND RECOMMENDATION: It is RECOMMENDED that Respondent's Motion to Dismiss this action as unexhausted 10 be DENIED and that the 1 Petition for Writ of Habeas Corpus filed by Richard A. Davidson be DISMISSED. Objections to R&R due by 11/6/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on October 23, 2018. (jlk) (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
RICHARD A. DAVIDSON,
CASE NO. 2:18-CV-00495
JUDGE ALGENON L. MARBLEY
Chief Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, 1 WARREN
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent’s Motion
to Dismiss (ECF No. 10), Petitioner’s Response(s) in Opposition (ECF Nos. 11, 12), and the
exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that
Respondent’s Motion to Dismiss this action as unexhausted (ECF No. 10) be DENIED and that
this action be DISMISSED.
Facts and Procedural History
Petitioner challenges his convictions in the Fayette County Court of Common Pleas on
unlawful sexual conduct with a minor and aggravated possession of drugs. The Ohio Twelfth
District Court of Appeals summarized the facts and procedural history of the case as follows:
{¶ 2} On February 3, 2017, Davidson was indicted on one count of unlawful sexual
conduct with a minor in violation of R.C. 2907.04, a third-degree felony, and
aggravated possession of drugs in violation of R.C. 2925.11, a fifth-degree felony.
Davidson waived his right to a jury trial and the matter was tried to the bench.

Respondent indicates that Chae Harris, Warden of the Warren Correctional Institution, is the
proper party Respondent.
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{¶ 3} The state presented evidence that R.S. was 13 years old and Davidson was 43
years old on November 24, 2016. R.S. testified that she had dating profiles on the
websites “Uber Horny” and “Fling” where she listed her age as 19 years old. It was
through these dating or hookup websites that R.S. met Davidson. Following
communication through these websites, R.S. arranged a rendezvous with Davidson
at her home, telling him to park at a nearby business and come around to the back
door.
{¶ 4} When Davidson arrived, R.S. testified that she let him into the house and led
him into her bedroom and told him to be quiet so as not to wake her grandmother.
R.S. testified that they sat on the bed and talked for approximately 30 minutes
during which Davidson, on numerous occasions, asked how old she was. R.S. stated
that she told Davidson each time that she was 19 years old. At one point, Davidson
asked R.S. what her birthdate was and she responded, “I told him it was 12/26 and
then I paused on the year because I had to do the math * * * I told him ‘97, 12/26
of ‘97.”
{¶ 5} After talking, R.S. stated that Davidson began kissing her and advanced
toward pursuing sexual conduct. Eventually, R.S. testified that Davidson removed
her pants and underwear and performed oral sex on her and digitally penetrated her
over the next 90 minutes. At some point, R.S.’s grandmother came to check on her
and discovered Davidson, naked and attempting to hide behind a dresser. As a
result, R.S.’s grandmother called the police. Davidson remained at the house until
the police arrived, maintaining that he believed R.S. was older.
{¶ 6} Thereafter, Davidson’s car was impounded and detectives discovered a glass
pipe in the center console of the vehicle with a quantity of methamphetamine.
Results from the Bureau of Criminal Investigation confirmed that the substance
tested positive for methamphetamine.
{¶ 7} Following the introduction of the state’s evidence, Davidson moved for a
Crim.R. 29 motion for acquittal, which was denied. Thereafter, Davidson rested his
case. The trial court found Davidson guilty of both counts and sentenced him to
four years in prison on the unlawful sexual conduct charge to be served concurrent
with a 12–month sentence on the drug possession offense. Davidson was also
classified as a Tier II sexual offender. Davidson now appeals, raising three
assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUPPORT THE CONVICTIONS.
{¶ 10} Assignment of Error No. 2:

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{¶ 11} THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.
State v. Davidson, 12th Dist. No. 2018 WL 2095706, at **1-2 (Ohio Ct. App. May 7, 2018).
Petitioner did not file a timely appeal. On October 10, 2018, the Ohio Supreme Court denied his
motion for a delayed appeal. State v. Davidson, -- N.E.3d --, 2018 WL 4927619 (Ohio Oct. 10,
2018).
Petitioner also pursued post conviction relief. He indicates that, on April 25, 2018, he
filed a Motion to Void Sentence, Petition for Post Conviction Relief, and Motion for Judicial
Release in the state trial court, asserting that the trial court failed to comply with O.R.C. §
2929.12(f) in imposing sentence by failing to consider mitigating factors. Petitioner also states
that he attempted to present a claim of “new evidence.” Petition (ECF No. 1, PAGEID # 4.) That
action remains pending. Petitioner states that, on August 31, 2018, he filed a Motion for Summary
Judgment, and on October 4, 2018, he filed a Motion for Status Conference, but he has yet to
receive a response.2
On May 18, 2018, Petitioner filed this pro se Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. He asserts that he is actually innocent of the charge of unlawful sexual
conduct with a minor (claim one); that he has new evidence indicating that he attempted to run a
background check on the alleged victim, in support of his claim of actual innocence (claim two);
and that he was denied the effective assistance of counsel because his attorney refused to permit
him to testify on his own behalf, advised him to waive a jury trial and failed to present a defense

Petitioner additionally indicates that he filed an application to reopen the appeal pursuant to
Ohio Appellate Rule 26(B), which was denied. Response in Opposition (ECF No. 11, PAGEID
# 156.)
2

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(claim three). It is the position of the Respondent that this action should be dismissed without
prejudice as unexhausted.
Exhaustion
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. 28 U.S.C. § 2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349 (1989);
Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right under
state law to raise a claim by any available procedure, he has not exhausted that claim. 28 U.S.C. §
2254(b), (c). Moreover, a constitutional claim for relief must be presented to the state’s highest
court in order to satisfy the exhaustion requirement. O’Sullivan v. Boerckel, 526 U.S. 838 (1999);
Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
Additionally, federal courts may not entertain “mixed petitions,” i.e., petitions that present
both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). Federal courts have
the discretion to stay a mixed petition in order to permit a petitioner to present his unexhausted
claim to the state courts, and then to return to federal court for review of all, now exhausted, claims.
Rhines v. Weber, 544 U.S. 269 (2005). However, stays under these circumstances should be only
sparingly used; stays are not appropriate, for example, when the unexhausted grounds are plainly
meritless. Id. at 278. A petitioner seeking a stay to permit exhaustion of an unexhausted claim
must demonstrate both good cause for having failed to exhaust his state court remedies and a
potentially meritorious claim. Id. at 277–78.
Respondent argues that that the Court should dismiss this action without prejudice as
unexhausted, in view of Petitioner’s pending state post-conviction petition, and because, at the
time of the filing of the Motion to Dismiss, Petitioner’s motion for a delayed appeal remained
pending in the Ohio Supreme Court. As discussed, however, on October 10, 2018, the Ohio

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Supreme Court denied Petitioner’s motion for a delayed appeal. Davidson, 2018 WL 4927619.
Thus, this action no longer remains unexhausted on this basis.
Further, the sole remaining potentially unexhausted claim that Petitioner appears to have
raised in state post-conviction proceedings, involves his claim that he is actually innocent of
unlawful sexual conduct with a minor, because he has documentation indicating that he attempted
to verify the alleged victim’s age from a company called “Been Verified” prior to meeting with
her for the purpose of engaging in sex. Response in Opposition (ECF No. 11, PAGEID # 153-54.)
However, a free-standing claim of actual innocence does not provide a basis for federal habeas
relief. See Legrone v. Birkett, 571 F. App’x 417, 421 (6th Cir. 2014) (citing Herrera v. Collins,
506 U.S. 390, 400 (1993) (“[C]laims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent constitutional
violation. . . .”); see Patterson v. Tibbals, No. 3:16-cv-098, 2018 WL 3957404, at *4 (S.D. Ohio
Aug. 17, 2018) (claim of actual innocence fails to state a claim upon which relief can be granted)
(citations omitted).

Thus, Petitioner’s claim of actual innocence, assuming that it remains

unexhausted, does not assist him here. “An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(2). Therefore, the Magistrate Judge RECOMMENDS
that this claim be DISMISSED for failure to provide a basis for relief.
The remainder of Petitioner’s claims appear to be plainly procedurally defaulted based on
Petitioner’s failure to file a timely appeal to the Ohio Supreme Court.
Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a writ of

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habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to
protect the constitutional rights of criminal defendants, and in order to prevent needless friction
between the state and federal courts, a state criminal defendant with federal constitutional claims
is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).
If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is
subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6
(1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a petitioner
has failed to exhaust claims but would find those claims barred if later presented to the state courts,
“there is a procedural default for purposes of federal habeas.” Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991).
The term “procedural default” has come to describe the situation where a person convicted
of a crime in a state court fails (for whatever reason) to present a particular claim to the highest
court of the State so that the State has a fair chance to correct any errors made in the course of the
trial or the appeal before a federal court intervenes in the state criminal process. This “requires the
petitioner to present ‘the same claim under the same theory’ to the state courts before raising it on
federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v.
Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the
state courts is that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the claims are not
presented to the state courts in the way in which state law requires, and the state courts therefore
do not decide the claims on their merits, neither may a federal court do so. As the Supreme Court
found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not
resolved on the merits in the state proceeding due to respondent’s failure to raise them there as

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required by state procedure” also cannot be resolved on their merits in a federal habeas case—that
is, they are “procedurally defaulted.”
To determine whether procedural default bars a habeas petitioner’s claim, courts in the
Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);
see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part analysis
of Maupin). First, the court must determine that there is a state procedural rule that is applicable
to the petitioner’s claim and that the petitioner failed to comply with the rule. Second, the court
must determine whether the state courts actually enforced the state procedural sanction. Third, the
court must determine whether the forfeiture is an adequate and independent state ground on which
the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138.
Finally, if “the court determines that a state procedural rule was not complied with and that the
rule [has] an adequate and independent state ground, then the petitioner” may still obtain review
of his or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the
default and (2) that he or she was actually prejudiced by the alleged constitutional error. Id.
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner
must show that “some objective factor external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally
ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter,
529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim
generally must “ ‘be presented to the state courts as an independent claim before it may be used to
establish cause for a procedural default.’ ” Edwards, 529 U.S. at 452 (quoting Murray v. Carrier,
477 U.S. 478, 479 (1986)). That is because, before counsel’s ineffectiveness will constitute cause,
“that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must

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be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668
(6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the ‘cause and
prejudice’ standard with respect to the ineffective-assistance claim itself.” Edwards v. Carpenter,
529 U.S. 446, 450–51 (2000). The Supreme Court explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the procedural-default
doctrine in Coleman: “In the absence of the independent and adequate state ground
doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court. The independent and
adequate state ground doctrine ensures that the States’ interest in correcting their
own mistakes is respected in all federal habeas cases.” 501 U.S., at 732, 111 S.Ct.
2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and
procedural default last Term in O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to “
‘protect the integrity’ of the federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728, 144
L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion
requirement, we said, would be utterly defeated if the prisoner were able to obtain
federal habeas review simply by “ ‘letting the time run’ ” so that state remedies
were no longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1.
Those purposes would be no less frustrated were we to allow federal review to a
prisoner who had presented his claim to the state court, but in such a manner that
the state court could not, consistent with its own procedural rules, have entertained
it. In such circumstances, though the prisoner would have “concededly exhausted
his state remedies,” it could hardly be said that, as comity and federalism require,
the State had been given a “fair ‘opportunity to pass upon [his claims].’ ” Id., at
854, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)
(emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94
L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a procedural
default occurred, it must not consider the procedurally defaulted claim on the merits unless “review
is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new
evidence showing that a constitutional violation has probably resulted in a conviction of one who
is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v.
Carrier, 477 U.S. 478, 495–96 (1986)).
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This Court may sua sponte raise the issue of procedural default. See Sheppard v. Bagley,
604 F.Supp.2d 1003, 1013 (S.D. Ohio 2009) (citing Howard v. Bouchard, 405 F.3d 459, 476 (6th
Cir.2005), r’hng and r’hng en banc denied July 6, 2005 (citing Lorraine v. Coyle, 291 F.3d 416,
426 (6th Cir. 2002)); Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000)); see also Watkins
v. Warden, Dayton Corr. Inst., No. 2:16-cv-00501, 2016 WL 4394138, at *2 (S.D. Ohio Aug. 18,
2016) (“[A]lthough federal courts are not required to raise procedural default sua sponte, neither
are they precluded from doing so.”).
Here, Petitioner asserts that he was denied the effective assistance of counsel and, liberally
construing his pleadings, that the evidence is constitutionally insufficient to sustain his conviction
on unlawful sexual conduct with a minor. Petitioner raised these same claims on direct appeal;
however, he failed to file a timely appeal, and the Ohio Supreme Court denied his motion for a
delayed appeal. Petitioner thereby has waived his claims for review in these proceedings. See
Smith v. State of Ohio Dept. of Rehab. & Corr., 463 F.3d 426, 431–32 (6th Cir. 2006) (citing
Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) ); Depinet v. Bunting, No. 3:14-cv-1366, 2015
WL 5675076, at *6–7 (N.D. Ohio Sept. 25, 2015) (citations omitted).
Further, the record does not indicate that Petitioner can establish cause for his procedural
default. It is Petitioner’s burden to show cause and prejudice. Hinkle v. Randle, 271 F.3d 239,
245 (6th Cir. 2001). A petitioner’s pro se status, ignorance of the law, or ignorance of procedural
requirements are insufficient bases to excuse a procedural default. Bonilla, 370 F.3d at 498.
Instead, in order to establish cause, a petitioner “must present a substantial reason that is external
to himself and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir.
2007). The record does not reflect such circumstances here.

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Likewise, the record does not reflect that this is “an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually innocent” so
as to excuse Petitioner’s otherwise procedurally defaulted claims. Murray, 477 U.S. at 496. The
actual innocence exception to procedural default allows a petitioner to pursue his constitutional
claims if it is “more likely than not” that new evidence—i.e., evidence not previously presented at
trial—would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter v.
Jones, 395 F.3d 577 (6th Cir. 2005). The Court of Appeals for the Sixth Circuit explained the
exception as follows:
The United States Supreme Court has held that if a habeas petitioner “presents
evidence of innocence so strong that a court cannot have confidence in the outcome
of the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to pass through the gateway
and argue the merits of his underlying claims.” Schlup, 513 U.S. at 316, 115 S.Ct.
851, 130 L.Ed.2d 808. Thus, the threshold inquiry is whether “new facts raise[ ]
sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result
of the trial.” Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish
actual innocence, “a petitioner must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that
“actual innocence means factual innocence, not mere legal insufficiency.” Bousley
v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To
be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851,
130 L.Ed.2d 808. The Court counseled however, that the actual innocence
exception should “remain rare” and “only be applied in the ‘extraordinary case.’ ”
Id. at 321, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808.
Souter, 395 F.3d at 589–90 (footnote omitted). Petitioner does not meet these standards here.
The appellate court, in rejecting Petitioner’s claim of insufficiency of the evidence noted
as follows:
Davidson was convicted of unlawful sexual conduct with a minor, in violation of
O.R.C. 2907.04(A). That statute provides:

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No person who is eighteen years of age or older shall engage in sexual conduct with
another, who is not the spouse of the offender, when the offender knows the other
person is thirteen years of age or older but less than sixteen years of age, or the
offender is reckless in that regard.
{¶ 16} “Sexual conduct” is defined in R.C. 2907.01(A) as “vaginal intercourse
between a male and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of sex; and, without privilege to do so, the insertion, however
slight, of any part of the body or any instrument, apparatus, or other object into the
vaginal or anal opening of another.”
{¶ 17} “A person has knowledge of circumstances when he is aware that such
circumstances probably exist.” R.C. 2901.22(B). “A person is reckless with respect
to circumstances when, with heedless indifference to the consequences, he
perversely disregards a known risk that such circumstances are likely to exist.” R.C.
2901.22(C); State v. Smith, 12th Dist. Warren Nos. CA2012–02–017 and CA2012–
02–018, 2012–Ohio–4644, ¶ 36.
{¶ 18} Davidson’s convictions for unlawful sexual conduct with a minor and
aggravated possession of drugs were based on sufficient evidence. The state
presented evidence that R.S. was 13 years old and Davidson was 43 years old on
November 24, 2016. R.S. testified about the encounter with Davidson which
included both cunnilingus and digital penetration.
{¶ 19} Davidson argues that his conduct was at worst negligent, and certainly not
reckless. Davidson cites R.S.’s dating profile and her insistence that she was 19
years old. Davidson further believes that the trial court considered the hookup
websites and pornographic imagery contained in photographs of the website as
evidence that he was morally reprehensible and thus guilty without considering
whether his behavior was legally reckless. Essentially, Davidson argues “the trial
court would have to have found that Mr. Davidson disregarded a substantial and
justifiable risk that R.S. was under the age of sixteen based solely upon her living
with her grandparents and him failing to ask for government-issued identification
and proof of age.”
{¶ 20} However, following review of the record, we find Davidson’s argument is
without merit. In a sufficiency analysis, “the persuasiveness of the State’s evidence
is not at issue.” State v. Stoddard, 9th Dist. Summit No. 27426, 2015–Ohio–3750,
¶ 25. The only issue is whether, viewing the evidence in favor of the State, the State
set satisfied its burden of production. Id.
{¶ 21} In this case, R.S. testified that she had invited Davidson to the house in the
middle of the night and gave him instructions to not arouse the suspicions of her
grandmother. R.S. testified that Davidson asked her how old she was on numerous
occasions and even asked her what her birthday was, which caused her to “pause”
so she could do the math in her head. While R.S. told Davidson that she was 19
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years old, he did not do anything to learn her true age. In fact, the evidence strongly
suggests that Davidson was extremely skeptical that R.S. had provided him with
her correct age. Viewing the evidence in a light most favorable to the prosecution,
a reasonable trier of fact could find that Davidson was reckless in determining
R.S.’s true age before engaging in sexual conduct with her.
State v. Davidson, 2018 WL 2095706, at *2-3.
Petitioner has attached, in support of his claim of actual innocence, a copy of a letter from
“Been Verified” dated June 29, 2018, indicating that on November 29, 2016, they conducted a
“search report” on the alleged victim through Petitioner’s account. (ECF No. 11, PAGEID # 160.)
Upon review of the record, and consideration of the attached document, the Court remains
unpersuaded that Petitioner has established it is more likely than not that no reasonable juror would
have found him guilty beyond a reasonable doubt, in view of the circumstances discussed by the
state appellate court, and the child’s tender age of 13 years. The Court also notes that the letter
provided by Petitioner does not indicate the results of any search report he obtained. In short, the
Court is not persuaded that the record reflects that this is so extraordinary a case as to relieve
Petitioner of his procedural default.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss
this action as unexhausted (ECF No. 10) be DENIED and that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is

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made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision,
they may submit arguments in any objections filed, regarding whether a certificate of appealability
should issue.
_s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
Chief United States Magistrate Judge

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