Opinion

Lindsay v. North Central Correctional Complex

Court
District Court, N.D. Ohio
Filed
Apr 29, 2025
Cited by
0 cases
Authority
More cited than 35.0%

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WENDELL R. LINDSAY, II ) CASE NO.: 1:23-cv-01649

)

Petitioner, ) JUDGE JOHN ADAMS

)

)

)

WARDEN TOM WATSON, ) ORDER AND DECISION

)

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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