The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WENDELL R. LINDSAY, II ) CASE NO.: 1:23-cv-01649
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Petitioner, ) JUDGE JOHN ADAMS
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WARDEN TOM WATSON, ) ORDER AND DECISION
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Respondent. )
This matter appears before the Court on Petitioner Wendell R. Lindsay, II, objections to
the Magistrate Judge’s Report and Recommendation (“R&R”). Upon review, the Court overrules
the objections and adopts the R&R and incorporates its findings and conclusions herein. Lindsay’s
petition is DENIED, and this matter is DISMISSED.
Where objections are made to a magistrate judge’s R&R this Court must:
must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to. 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).
At the outset, the Court notes that this is Petitioner’s second habeas petition before this
Court. Lindsay v. Tibbals, 1:13CV309 (“Lindsay 1”). His first petition was filed on February 12,
2013, contained both exhausted and unexhausted claims. Lindsay 1, Doc. 16. In February of 2014,
the Court dismissed the fourth, fifth and sixth grounds for relief in his § 2254 petition. Lindsay 1,
Doc. 21. The Court construed his remaining claims as follows:
I. The trial court erred in admitting: (1) testimony regarding the victim’s
statements to others when she disclosed the sexual abuse; (2) improper
character/prior bad acts evidence; and (3) a civil protection order in an
unrelated case.
II. Trial counsel was ineffective in failing to: (a) object to court and
prosecutorial misconduct in allowing “true DNA facts” to be “hidden” from
expert witnesses; (b) file suppression motions concerning the DNA
evidence; and (c) object to testimony from “friends of the court.”
III. The verdict was against the manifest weight of the evidence.
IV. The prosecutor committed misconduct by failing to provide discovery of
the “true DNA facts.”
V. The State should have conducted five separate trials, one for each incident
of abuse alleged in the indictment.
Lindsay 1, Doc. 21, p. 6. The Lindsay 1 R&R concluded that Petitioner’s claims were procedurally
defaulted and precluded from habeas review. However, the Court went on to “construe the
petition to assert the issues therein in the context of ineffective assistance of counsel.” Lindsay 1,
Doc. 21, p. 10-11. Ultimately, after a substantive review of the merits, the R&R recommended
dismissal of Petitioner’s claims. On February 29, 2016, this Court adopted the R&R and dismissed
the Petition. Lindsay 1, Doc. 27.
Nearly eight years later, Petitioner brings his current 2254 Petition. Doc. 1. The R&R
sums up Petitioner’s claims as follows:
In his First Ground for Relief, Lindsay argues his constitutional rights to due
process and equal protection of law were violated when the Parole Board denied
his release without a revocation hearing. (Doc. No. 1 at 5.) In his Second and Third
Grounds for Relief, Lindsay claims violations of the “ex post facto clause” and the
separation of powers doctrine, stemming from the same issue and facts. (Id. at 7-
8.)
…
In his Fourth Ground for Relief, Lindsay alleges the Ohio Supreme Court’s March
8, 2023 Judgment Entry affirming the court of appeals decision dismissing
Lindsay’s petition for writ of habeas corpus “was erroneous, and did not apply to
the subject matter of the appeal and the issues . . .” (Doc. No. 1.)
Doc. 17, p. 23, 27. The R&R explains that Petitioner’s “current habeas petition is challenging the
decision the Parole Board made in June 2021, years after the litigation of his first habeas petition
concluded.” Doc. 17, p. 17. The R&R notes that the current claims were unripe when Petitioner
filed his first 2254 Petition because the events that gave rise to the current claims had not yet
occurred. Accordingly, as to these claims, the R&R recommends that Petitioner’s claim not be
classified as “second or successive” and that they proceed on the merits. Petitioner does not object
to this conclusion. Accordingly, the Court adopts this reasoning.
After a lengthy discussion, the R&R concludes that Petitioner’s first three claims fail on
their merits. Doc. 17, p. 27. In his first claim, Petitioner argues his constitutional rights to due
process and equal protection of law were violated when the Parole Board denied his release without
a revocation hearing. Doc. 17, p. 23. In his second and third claims, he asserts violations of the “ex
post facto clause” and the separation of powers doctrine, stemming from the same issue and facts.
Id. The R&R notes that incarcerated individuals have no inherent constitutional right, or liberty
interest, to parole. Doc. 17, p. 25.
Here, Lindsay failed to provide a meaningful basis for the Court to conclude that
he had a legitimate claim of entitlement to release that should be afforded
constitutional protection. It is undisputed that Lindsay’s maximum sentence is for
life. Inmates of Orient, 929 F.2d at 235 (a convicted person has no claim of
entitlement to parole before the expiration of a valid sentence). The circumstances
here, where the Parole Board granted release and then revoked same, does not
constitute a legitimate claim of entitlement sufficient to trigger the procedural due
process protections of the Fourteenth Amendment. Bell v. Anderson, 2006 U.S.
Dist. LEXIS 75883.
Doc. 17, p. 27. Petitioner does not challenge this conclusion, rather his objections are a repetition
of the underlying arguments to the state court and to this Court in his Petition. “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. Block, 327 F.Supp.2d 743, 747 (E.D. Mich., 2004). Given this, Petitioner has
not demonstrated error by the Magistrate Judge, and his objections are OVERRULED.
As to Petitioner’s fourth claim, that the Ohio Supreme Court’s March 8, 2023 Judgment
Entry affirming the court of appeal’s decision dismissing his petition for writ of habeas corpus
“was erroneous, and did not apply to the subject matter of the appeal and the issues[,]” the R&R
concludes that it is procedurally defaulted AND fails on the merits. Doc. 17, p. 20, 27. Regarding
procedural default, the R&R notes that Petitioner did not raise this claim to the Ohio Supreme
Court and the remedy is no longer available to him. Doc. 17, p. 20. Petitioner does not challenge
this conclusion in his objections. Accordingly, his objections are OVERRULED.
The R&R is hereby ADOPTED IN WHOLE, and Lindsay’s petition is hereby DENIED.
The Court certifies, pursuant to 28 U.S.C. '1915(A)(3), 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.
This Order is entered pursuant to Federal Rule of Civil Procedure 58.
IT IS SO ORDERED.
April 28, 2025 /s/ John R. Adams
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE