Glover v. Warden, London Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends that the Amended Petition be dismissed with prejudice. Because reasonable jurists would not disagr ee with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/7/2017. Signed by Magistrate Judge Michael R. Merz on 1/24/2017. (kpf)(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
WESTERN DIVISION AT DAYTON
- vs -
Case No. 3:16-cv-511
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
JEFF NOBLE, Warden,
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Objections (ECF No. 5) to the Magistrate Judge’s Report and Recommendations (ECF No. 4)
recommending dismissal of the Amended Petition with prejudice. Pursuant to Fed. R. Civ. P.
72(b), Judge Rice has recommitted the case for reconsideration in light of the Objections
(Recommittal Order, ECF No. 6).
The Report concluded Mr. Glover’s insufficient evidence claim (Grounds One and Four)
was without merit because, as the Second District Court of Appeals found, there was ample
direct evidence – testimony of the victim – that the sexual misconduct happened. Mr. Glover
objects that this is only “hearsay” evidence and there was no physical forensic evidence
presented. Hearsay is an out-of-court statement offered in court to prove the content of the
statement. Ohio R. Evid. 801. In-court testimony by a victim is not hearsay. As the Report
shows by citation to authority, direct testimony of a rape victim or indeed the victim of any crime
is sufficient to convict.
Approaching his claim from a different direction, Mr. Glover insists he is the victim of
prosecutorial misconduct because the prosecutor presented the testimony of the victim knowing
it was perjured. However, he offers no proof the perjury. As the Repot also points out, his claim
that the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by not revealing the
strengths and weaknesses of the prosecution case until trial does not state a claim under the
Constitution and, in any event, he points to no Brady evidence that was not disclosed by the time
Mr. Glover raises in his Objections a claim he did not make in his Amended Petition, to
wit, that appellate counsel provided ineffective assistance by not arguing double jeopardy or the
related Ohio allied offenses of similar import claims. As noted in the Report, the standard for
ineffective assistance of appellate counsel is set out in Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland a petitioner must show both deficient performance and prejudice.
Glover cannot prevail on an ineffective assistance of appellate counsel claim because the
offenses he was convicted of committing happened on different dates. The fact that similar
crimes were committed against the same victim on many different dates using the same or a
similar modus operandi does not make those crimes allied offenses or prohibit their separate
punishment under the Double Jeopardy Clause. Just because a Defendant has victimized another
in the same way on two or more different occasions does not mean those are the same offense for
Double Jeopardy purposes.
Finally, Mr. Glover asserts his claim of actual innocence is cognizable in federal habeas
corpus (Objections, ECF No. 5, PageID 56, citing Cullen v. Pinholster, 563 U.S. 170 (2011)),
That is not the holding in Pinholster. Instead, that case holds a federal habeas court may not hear
new evidence of constitutional violations not presented in state court unless and until it decides
the state court decision is an objectively unreasonable determination, based solely on the record
before the state courts. In fact it has been repeatedly held that actual innocence is not a freestanding claim cognizable in habeas. Herrera v. Collins, 506 U.S. 390, 408-11 (1993).
Case law in the Sixth Circuit establishes that the Supreme Court of
the United States has never recognized a free-standing or
substantive actual innocence claim. Cress v. Palmer, 484 F.3d 844,
854 (6th Cir. 2007), citing Zuern v. Tate, 336 F.3d 478, 482, n.1
(6th Cir. 2003), and Staley v. Jones, 239 F.3d 769, 780, n.12 (6th
Cir. 2001). The Supreme Court has twice suggested that a "truly
persuasive demonstration" of actual innocence would render a
petitioner's execution unconstitutional. Herrera v Collins, 506 U.S.
390, 417 (1993); House v. Bell, 547 U.S. 518 (2006).
Raymond v. Sheets, 2012 U.S. Dist. LEXIS 160374, *26-27 (S.D. Ohio Nov. 8, 2012); Stojetz v.
Ishee, 2014 U.S. Dist. LEXIS 137501, *185-86 (S.D. Ohio Sept. 24, 2014)(Frost, D.J.)
Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that the Amended Petition be dismissed with prejudice. Because
reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would
be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
January 24, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
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