Opinion
CASE NO. 2:15-CV-02408
07-24-2015
LATROY AGBOHLA, Petitioner, v. NORTH CENTRAL CORRECTIONAL COMPLEX, Respondent.
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
On June 24, 2015, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. (ECF No. 6.) Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. (ECF 7.) 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. 7) is OVERRULED. The Report and Recommendation (ECF No. 6) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner raises a claim under the Fourth Amendment. The Magistrate Judge recommended dismissal of the claim under Stone v. Powell, 428 U.S. 465 (1976), which holds that Fourth Amendment claims cannot be raised in a federal habeas petition, so long as the Petitioner had a full and fair opportunity to litigate the claim in the state courts. Petitioner argues that he did not have a full and fair opportunity to litigate his claim in view of the Ohio Supreme Court's summary dismissal of his appeal. Petitioner also contends that the State's failure to raise an issue under Stone v. Powell may constitute a waiver of this defense.
Petitioner's Objection is not well taken. In Riley v. Gray, 674 F.2d 522 (1982), the United States Court of Appeals for the Sixth Circuit held that Ohio's mechanism for resolution of Fourth Amendment claims is clearly adequate absent frustration of the presentation of the claim based on a failure of the "mechanism" by which a criminal defendant obtains resolution of the claim in the Ohio courts. Id. at 526. The Ohio Supreme Court's summary dismissal of the claim does not present such circumstance. Further, Respondent had no opportunity to raise the issue, as the Magistrate Judge recommended dismissal of this case under Rule 4 of the Rules Governing Section 2254 proceedings, which provides for preliminary review and dismissal of the case where the record shows that Petitioner plainly is not entitled to relief. The dismissal of a § 2254 petition under the Stone v. Powell constitutes such a circumstance. See, e.g., Oetman v. Cox, No. 1:09-cv-1027, 2010 WL 160579, at *5 (W.D. Mich. Jan. 8, 2010); Haytham v. Bell, No. 1:07-cv-436, 2008 WL 3875399, at *2-3 (W.D. Mich. Aug. 18, 2008).
For these reasons and for the reasons discussed in the Magistrate Judge's Report and Recommendation, Petitioner's Objection (ECF No. 7) is OVERRULED. The Report and Recommendation (ECF No. 6) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge