Bentz v. Wainwright

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JUSTIN BENTZ, ) CASE NO. 3:19-cv-1203

)

)

PETITIONER, ) JUDGE SARA LIOI

)

vs. )

) MEMORANDUM OPINION AND

) ORDER

LYNEAL WAINWRIGHT, WARDEN, )

)

)

RESPONDENT. )

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge

Jonathan D. Greenberg recommending dismissal of the petition for writ of habeas corpus filed by

petitioner Justin Bentz (“Bentz” or “petitioner”). (Doc. No. 10.) Bentz timely filed his objections

to the R&R pursuant to Fed. R. Civ. P. 72(b)(2). (Doc. No. 12.) Respondent Warden Lyneal

Wainwright (“Respondent”) filed no opposition to the objections and the time for doing so under

the rule has expired. For the reasons set forth herein, Bentz’s petition for writ of habeas corpus is

denied in its entirety.

I. LEGAL STANDARD

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 also 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.”); 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.”). “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). After review, “[t]he 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).

Although the Court must review de novo any matter properly objected to, it must do so

under a deferential standard of review.

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2). In Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000), the Sixth

Circuit, variously quoting Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389

(2000), noted the Supreme Court’s explanation of these standards:

[A] decision of the state court is “contrary to” clearly established federal law “if

the state court arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable facts.” [citation

omitted]. . . . [A]n “unreasonable application” occurs when “the state court

identifies the correct legal principle from [the Supreme] Court’s decision but

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unreasonably applies that principle to the facts of the prisoner’s case.” [citation

omitted]. A federal habeas court may not find a state adjudication to be

“unreasonable” “simply because that court concludes in its independent judgment

that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” [citation omitted].

II. DE NOVO REVIEW

A. Bentz’s Petition and the R&R

The R&R sets forth the procedural history of the case, including Bentz’s 2016 bench trial

in state court, which resulted in convictions for, among other crimes, felony rape and

kidnapping; his direct appeal, which resulted in a partial remand; and his unsuccessful appeal to

the Ohio Supreme Court. Bentz does not take issue with the magistrate judge’s recitation of the

procedural history and the Court accepts the magistrate judge’s summary, as if rewritten herein.

(Doc. No. 10 at 3–51.) For purposes of resolving Bentz’s objections to the R&R, it is sufficient to

note that, following a partial remand by the state appellate court, the trial court vacated Bentz’s

conviction and sentence for kidnapping and re-sentenced Bentz to a term of imprisonment of ten

years for his rape conviction. (Id. at 5 (citing Doc. No. 5-1 (State Record) at 266).)

On May 27, 2019, Bentz filed, through counsel, a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In his sole ground for relief, Bentz alleges that he

was deprived of the effective assistance of counsel when trial counsel failed to object to the

prosecutor’s use of leading questions during the direct examination of the victim. (Id. at 5.)

In his R&R, the magistrate judge recommends that the petition be dismissed. (Doc. No.

10 at 1, 22.) Applying the familiar standard articulated in Strickland v. Washington, 466 U.S.

1 All page number references herein are to the consecutive page numbers applied to each individual document by the

Court’s electronic filing system, a citation practice recently adopted by the Court despite different directions in the

Initial Standing Order in this case.

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668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1998), the magistrate judge found that Bentz failed to

demonstrate either that his counsel’s performance was deficient, or that any purported deficiency

resulted in prejudice to him. As to the first prong, the magistrate judge determined that the record

was clear that trial counsel made a strategic decision during the bench trial to permit leading

questions for most of the victim’s testimony and to utilize his right to object sparingly. The

magistrate judge found that the state appellate court properly employed Strickland’s highly

deferential standard to determine that this “tactical trial strategy [was] consistent with reasonable

professional judgment because at a bench trial, Bentz’s trial counsel could rely on the judge’s

ability to identify and rely on only relevant, material, and competent evidence.” (Doc. No. 10 at

19 (citing State v. Bentz, 93 N.E.3d 358, 396 (Ohio Ct. App. 2017)).)

Noting that Bentz did not argue that the substance of the victim’s testimony was

inadmissible, and further emphasizing that Bentz’s counsel engaged in a robust cross-

examination of the witness, the magistrate judge concluded that the second prong—prejudice—

was also unsatisfied. Specifically, the magistrate judge emphasized that Bentz’s counsel was

successfully able to draw out the witness’ limited memory and recall from the night of the

incident. (Id. at 21.) The magistrate judge also rejected Bentz’s argument that had his trial

counsel objected more regularly the elicited answers would have been excluded, noting that such

an argument “overlooks the fact that even if his trial counsel had objected [and] those objections

had been sustained, the prosecutor would have been permitted to rephrase his questions, which

would likely have elicited the same testimony.” (Id. at 20 (collecting cases).)

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B. Bentz’s Objections

In his short filing, Bentz begins with a general objection to the entirety of the magistrate

judge’s “findings, rationale, and recommendations.” (Doc. No. 12 at 4.) Summarizing the

arguments raised in his petition and traverse, Bentz posits once again:

[]Bentz seeks relief on the ground that his Sixth and Fourteenth Amendment

rights were violated. Trial counsel failed to object when the prosecutor used

leading questions through[out] the victim’s testimony. The petitioner was

prejudiced because the victim made multiple inconsistent statements regarding

her sobriety and her consent. Coupled with the unreasonableness of some of her

statements, the judge’s improper statements and the court of appeals[’] reversal,

there is a reasonable probability the result would have been different. []Bentz

objects to the Magistrate’s findings, rationale, and recommendations. []Bentz

incorporates by reference the arguments and authorities set forth above, as well as

those set forth in his Traverse.

(Id. at 4.) Such a general objection is improper as it is not specific to the magistrate judge’s

R&R. Holloway v. Palmer, No. 16-2450, 2017 WL 4844457, at *2 (6th Cir. Apr. 5, 2017)

(finding that a petitioner did not specifically object to the magistrate’s handling of certain claims

when the petitioner stated that “Petitioner objects to any and all adverse findings by the

Magistrate judge and asks this court to defer to the argument and case law found in Petitioner’s

Petition for Writ of Habeas Corpus”); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)

(finding that objections that allege the magistrate’s recommendation is incorrect, but “fail[ing] to

specify the findings . . . believed [to be] in error” are overly general and improper). Additionally,

by admitting that his objections are more fully explained in his petition and traverse, Bentz

effectively admits that his objections are merely repetitive of the arguments that were before the

magistrate judge. Non-specific objections and objections that are “simply a repetition of what the

Magistrate Judge has already considered” are improper. United States v. Bowers, No. 0:06-cv-7,

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2017 WL 6606860, at *1 (E.D. Ky. Dec. 26, 2017); see also Fed. R. Civ. P. 72(b)(2). Bentz’s

general objection is overruled.

Bentz also takes issue with the magistrate judge’s observation that, had trial counsel

successfully renewed his objection to the leading questions, the prosecutor could have simply

rephrased his questions and elicited the same testimony. (See Doc. No. 10 at 20.) Bentz argues

that “[w]ithout the testimony from the leading questions, there is no guarantee that, even had the

prosecutor rephrased the questions, as the Magistrate reasons, the necessary testimony would

have been presented.” (Doc. No. 12 at 4–5 (emphasis added).)

But this is not the standard on a federal habeas review of a state court’s resolution of an

ineffective assistance of counsel claim. “‘Surmounting Strickland’s high bar is never an easy

task.’” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)

(quoting Padilla v. Ky., 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)). “In

assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s

performance had no effect on the outcome or whether it is possible a reasonable doubt might

have been established if counsel acted differently.” Id. at 111. “Instead, Strickland asks whether

it is ‘reasonably likely’ the result would have been different.’” Id. (quoting Strickland, 466 U.S.

at 696). “Even under de novo review, the standard for judging counsel’s representation is a most

deferential one.” Id. at 105. “Establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and §

2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’

so[.]” Id. (quoting, among authority, Knowles v. Mizayance, 556 U.S. 111, 123, 129 S. Ct. 1411,

173 L. Ed. 2d 251 (2009) (internal citations omitted)).

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Bentz’s suggestion that there is no way to be certain that the prosecutor would have been

able to extract the same information with rephrased non-leading questions falls woefully short of

meeting the doubly deferential standard this Court must employ. At this stage in the proceedings,

Bentz cannot simply rely on speculation and mere possibility to show that counsel’s strategic

decision to permit certain leading questions was ineffective. See Strickland, 466 U.S. at 693

(explaining that “[i]t is not enough for the defendant to show that the errors has some

conceivable effect on the outcome of the proceeding . . . [v]irtually every act or omission of

counsel would meet that test”); see also Buell v. Mitchell, 273 F.3d 337, 359 (6th Cir. 1994)

(recognizing that strategic choices by defense counsel are “virtually unchallengeable”) (quotation

marks and citation omitted); O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994) (similar).

This objection is overruled.

Finally, Bentz questions the magistrate judge’s reasoning that there has been no showing

of prejudice because the record demonstrates that defense counsel was able to draw out

inconsistencies in the victim’s story on cross-examination. (See Doc. No. 10 at 21 (citing State

Record).) According to Bentz, that trial counsel was able to point out “weaknesses” in the State’s

case “simply proves the [p]etitioner’s case: the case was so weak, but-for trial counsel’s deficient

performance, there is a reasonable probability the trial court would have found [petitioner] not

guilty.” (Doc. No. 12 at 5.) Bentz once again resorts to sheer speculation to meet the Strickland

standard, but Bentz cannot lean on hindsight and a guilty verdict to establish ineffective

assistance of counsel. Indeed, Bentz’s “reliance on the harsh light of hindsight to second guess

his counsel’s competence in the crucible of trial is precisely what Strickland and AEDPA seek to

prevent.” Kendrick v. Parris, 989 F.3d 459, 469 (6th Cir. 2021) (quotation marks and citations

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omitted); see State v. Conway, 848 N.E.2d 810, 832-33 (Ohio 2006) (“That [trial counsel’s]

strategy was unsuccessful and the jury ultimately found [defendant] guilty ... is not a basis for

finding ineffective assistance of counsel.”’)

Bentz’s approach also fails to take into account the fact that his case was tried to the

court. As the magistrate judge correctly observed, a bench trial judge is presumed to have

considered only relevant and admissible evidence in reaching his or her decision. United States v.

Joseph, 781 F.2d 549, 552 (6th Cir. 1986) (citation omitted); see Brown v. Pitcher, 19 F. App’x

154, 157 (6th Cir. 2001) (applying the presumption in habeas proceedings) (citations omitted).

Bentz has failed to overcome this presumption and ultimately has failed to demonstrate a

reasonable probability that but-for trial counsel’s strategic decisions, the result of his bench trial

would have been different. This objection, therefore, is overruled.

Ill. CONCLUSION

Upon de novo review, all matters raised in Bentz’s objections are overruled. Accordingly,

the Court denies the petition in its entirety. Further, the Court certifies that an appeal from this

decision could not be taken in good faith and that there is no basis upon which to issue a

certificate of appealability. 28 U.S.C. $§ 1915(a)(3), 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

Dated: March 7, 2022 a1 a:

HONORABLE S LIOI

UNITED STATES DISTRICT JUDGE