Hewitt v. Bracy

Decision Date31 July 2019
Docket NumberCASE NO. 5:16-cv-3019
CourtU.S. District Court — Northern District of Ohio



Before the Court is the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. No. 10 ["R&R"]) recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Pro se petitioner Michael Andrew Hewitt ("Hewitt") filed objections to the R&R. (Doc. No. 12 ["Obj."].)

In accordance with 28 U.S.C. § 636(b)(1) and United States v. Curtis, 237 F.3d 598, 602-03 (6th Cir. 2001), this Court has made a de novo determination of the magistrate judge's R&R. For the reasons stated below, the Court overrules Hewitt's objections, adopts the R&R, and dismisses Hewitt's petition for a writ of habeas corpus.


Hewitt filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 16, 2016. (Doc. No. 1 ["Pet."].) Hewitt seeks relief from the sentence issued by the state trial court following a jury trial in which the jury returned a guilty verdict against Hewitt for murder, in violation of Ohio Rev. Code § 2903.02(A), along with a firearm specification. The magistrate judge summarized the factual predicate for this offense, as determined by the state appellate court, as well as Hewitt's efforts to appeal his conviction in the state courts. Hewitt does not challenge the accuracy of the magistrate judge's summary of the procedural history and state appellate court's fact-findings. (R&R at 1118-291.) Because the summary accurately reflects the factual and procedural posture of the case, the Court will accept the magistrate's summary, as if rewritten herein. (See id.)

Hewitt raised four grounds for relief in his habeas petition. In the R&R, the magistrate judge recommended that the Court reject the first ground as procedurally defaulted. (R&R at 1140-42.) The magistrate judge reached the merits of the remaining claims. In Hewitt's second ground—involving the admission of evidence relating to a criminal damaging incident involving Hewitt and the victim's roommate—the magistrate judge determined that the state appellate court reasonably determined that this prior incident was admissible under Ohio R. Civ. P. 404(b) as it set the stage for the charged homicide. (Id. at 1150.) The magistrate judge found that Hewitt's third ground—relating to the state court's determination that Hewitt's non-verbal response to a detective's suggestion that he would perform a test for gunshot residue was not obtained during an interrogation—did not represent an unreasonable application of clearly established federal law. (Id. at 1158-60.) The magistrate judge recommended that the Court reject Hewitt's fourth ground because it was not objectively unreasonable for the state appellate court to find that a rational juror could have determined beyond a reasonable doubt that Hewitt purposefully caused the victim's death. (Id. at 1168-69.)

Hewitt filed timely objections to the R&R.


Under 28 U.S.C. § 636(b)(1), "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) ("Any report and recommendation by a magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo review by the district court in light of specific objections filed by any party.") (citations omitted). "An 'objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an 'objection' as that term is used in this context." Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."); L.R. 72.3(b) (any objecting party shall file "written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections"). After review, the district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).

When undertaking its de novo review of any objections to the R&R, this Court must be additionally mindful of the standard of review applicable in the context of habeas corpus. "Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a federal court may grant habeas relief only when a state court's decision on the merits was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' decisions from [the Supreme] Court, or was 'based on an unreasonable determination of the facts.' 28 U.S.C. § 2254(d)." Woods v. Donald, -- U.S.--, 135 S. Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015) (per curiam). This standard is "intentionally difficult to meet." Id. (internal quotation marks and citations omitted). "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2001)).

A. Procedural Default

By his first objection, Hewitt objects to the magistrate judge's finding that his first ground for relief—relating to the trial admission of photographs from Hewitt's phone—was procedurally defaulted.2 It is well settled that a state prisoner cannot receive federal habeas review of a claim that has been procedurally defaulted. See Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000) (citing among authority Wainwright v. Sykes, 433 U.S. 72, 80, 84-87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)). Hewitt challenged the admission of the photographs on direct appeal and before the Ohio Supreme Court. But because he failed to preserve the issue in the trial court, the court of appeals applied a plain error analysis.

While Hewitt attempts to reach the merits of this ground, the fact remains that the claim was procedurally defaulted. (See Obj. at 1176-77.) The magistrate judge correctly observed that Ohio's contemporaneous objection rule, which requires that an objection to the introduction of evidence be lodged at trial to preserve the issue for appeal, is an adequate and independent state ground barring federal habeas review. See Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005). Moreover, the fact that the state court of appeals reviewed Hewitt's challenge to the evidence under a plain error standard did not waive or excuse the procedural default. See Mason v. Brunsman, 483 F. App'x 122, 130-31 (6th Cir. 2012).

Citing Ohio R. Evid. 103, Hewitt argues that he "objected to the evidence during a hearing on the same [issue]." (Obj. at 1178.) The state court of appeals rejected the argument that he had properly preserved the issue before the trial court, finding no evidence that Hewitt had filed a motion in limine challenging the admission of this evidence, and further finding that a motion in limine would not have been sufficient to preserve the issue for appellate review. See State v. Hewitt, No. 2014CA00078, 2015 WL 2194185, ¶ 48 (Ohio Ct. App. May 4, 2015). While Hewitt argues that the determination of procedural default is governed by federal law, a federal habeas court is bound by a state court's interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005) (citing among authority Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991)).

Because the Court finds that the magistrate judge properly determined that ground one was procedurally defaulted, Hewitt's first objection is OVERRULED.3

B. Admission of Criminal Damaging Incident/Sufficiency of Evidence

Hewitt's second and fourth objections can be addressed together. Hewitt argues that the magistrate judge erred in recommending the dismissal of ground two (admission of prior vehicle damaging incident) on the basis that it represents an unreasonable determination of the facts before the trial and appellate courts. He objects to the dismissal of ground four (sufficiency of the evidence) on essentially the same basis, arguing that the evidence was insufficient to demonstrate that he purposefully caused the death of another. In support of both objections, he offers his view of the evidence, and his belief that the evidence would have also supported a finding that he was acting in self-defense and that the victim was the aggressor.4

While Hewitt disagrees with the state appellate court's (and, by extension, the magistrate judge's) determination of the record facts, this Court's role, as a federal court conducting habeas review, is strictly limited to deciding whether a state prisoner's conviction violated the constitution, laws or treaties of the United States.5 See Estelle, 502 U.S. at 67-68. The Court does not sit to reexamine state court determinations on state law questions. Id. As the Sixth Circuit has frequently held, "errors in application of state law, especially with regard to the admissibility of evidence, are usually not cognizable in federal habeas corpus." Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983); see also Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001) (A federal habeas court does not rule on errors in the application of state law, especially alleged errors in the admission or exclusion of evidence)....

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