Confere, III v. DeMartino

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANA CONFERE, III, ) Case No. 5:24-CV-02184-JRA

)

Petitioner, ) JUDGE JOHN R. ADAMS

)

v. ) MAGISTRATE JUDGE

JENNIFER DOWDELL

)

WARDEN, MICHAEL DeMARTINO, ) ARMSTRONG

)

Respondent.

) REPORT & RECOMMENDATION

I. INTRODUCTION

Petitioner, Dana Confere, III (“Mr. Confere”), seeks a writ of habeas corpus under 28

U.S.C. § 2254. (ECF No. 1). Mr. Confere was sentenced to a term of 14 to 18 years in prison

after pleading guilty to two counts of felonious assault.

Mr. Confere asserts four grounds for relief. Respondent, Warden Michael DeMartino

(“Warden”), filed an answer/return of writ on April 18, 2025. (ECF No. 9). Mr. Confere filed

a traverse on May 16, 2025. (ECF No. 10). The Warden filed a reply to Mr. Confere’s traverse

on May 21, 2025. (ECF No. 11).

This matter was referred to me on January 2, 2025 under Local Rule 72.2 to prepare

a report and recommendation on Mr. Confere’s petition. (See ECF non-document entry dated

January 2, 2025). For the reasons set forth below, I recommend that Mr. Confere’s petition

be DISMISSED and/or DENIED. I further recommend that the Court not grant Mr. Confere

a certificate of appealability.

II. RELEVANT FACTUAL BACKGROUND

For purposes of habeas corpus review of state court decisions, a state court's findings

of fact are presumed correct and can be contravened only if the habeas petitioner shows, by

clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.

§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d

524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by

a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio

Court of Appeals for the Ninth Appellate District summarized the facts as follows:

{¶2} Mr. Confere assaulted R.A., his 36-week pregnant live-in girlfriend, and R.A.’s

unborn child. R.A. barely survived the assault and her child died. The Summit County

Medical Examiner determined the child died when R.A.’s placenta abrupted and

separated from her uterine wall as a result of the assault. During a forensic

examination by Jane Bryan, a SANE nurse, R.A. described her relationship with Mr.

Confere, and details of the attack, as follows:

It started off as a rough day for [Mr. Confere] because he didn't have any

cigarettes and he was saying things like he felt like I didn't put anything forth

with the relationship. [Mr. Confere] thought I was lazy because he said that I

didn't do enough around the house. But to be specific [Mr. Confere] was

screaming at me because he wanted me to put the pizza in the stove for both of

us. I said, “Sorry I wasn't trying to put it off on you.” But he wasn't listening, he

didn't care what I had to say. That's when he started attacking the tables with a

bar. It was a black bar with a sharp end on it. I got really scared because this was

one of the [worst] freak outs that I've seen. [Mr. Confere] started threatening me

saying, “I'm actually going to really beat you. If you can't help me then you're

going to pay for it.” When he experiences these episodes he'll tell me to leave

the room but then when I go to walk into the other room he gets me to where I

can't walk away. He grabs me by my hair. He definitely knows how to make it

to where I don't leave the room. Over the course of our relationship there were

times when he hurt me so bad that I thought my life would never be good again.

I felt hopeless, I wanted it to stop. I wanted him to get help. I've told him before

that I want him to get help for his explosive intermittent disorder and that I did

some research and learned that people with this disorder can get better after two

months of group counseling but he said, “I'm not going to change for anybody.

You have to accept the way I am.” When he was attacking the tables with the

bar he was breaking the glass and flipping them over. Here's the weird thing, I

don't remember getting off the floor. He kept saying, “Get up, [R.A.]. Get up,

[R.A.]. I'm really worried and I don't know what to do.” Then he called his work

buddy, [T.J.] and said, “Please come here, I need your help.” I was paralyzed on

the ground but I could [hear] him saying, “She's not getting up [.] I'm worried

about my daughter. I'm worried about [R.A.].” I remember lying on the floor and

not being able to open my eyes. * * * When this all started and he began his

freak out, I tried to leave at first but he yanked me by my hair and back into the

room and said, “You're not going anywhere.” He continued to verbally assault

me. He ripped me all over the house by my hair. Some of the time and intervals

are hazy a little bit. I remember him hitting me after he broke the tables. He hit

me on the right side of my face. Right before I fell on the floor paralyzed is when

he kicked me in the stomach. I never fell down the stairs. I lied to protect him. I

was so startled when he kicked me in the stomach and I remember making a

noise and that's all I remember about that. He stood in front of me and kicked

me in the stomach. I fell to the ground paralyzed and I couldn't move. * * * Once

he kicked me and saw me fall, he quit. Before I fell I was standing at the front

door and he put his hands around my neck and strangled me.

R.A. indicated her entire body was in “excruciating pain,” and that her abdominal pain

was 10/10 at the time of the assault. R.A. further indicated, “[a]fter [Mr. Confere]

kicked me in the stomach I knew something was terribly wrong because I had pain in

my vagina.” R.A. feared Mr. Confere upon discharge from the hospital and stated,

“[i]f he's in jail then I'm not afraid.”1

(ECF No. 9-1, Exhibit 22); State v. Confere, No. 30560, 2023 WL 5949443, 2023-

Ohio-3233 (9th Dist. Sept. 13, 2023).

III. PROCEDURAL HISTORY

A. State Court Guilty Plea

On February 6, 2020, Mr. Confere was indicted in the Summit County Court of

Common Pleas on: (1) two second-degree felony counts of felonious assault in violation of

O.R.C. §§ 2903.11(A)(1) and 2903.11(D)(1)(a); (2) one first-degree felony count of

involuntary manslaughter in violation of O.R.C. §§ 2903.04(A) and 2903.04(C); (3) one

fourth-degree felony count of domestic violence in violation of O.R.C. §§ 2919.25(A) and

2919.25(D)(3); and (4) one fifth-degree felony count of domestic violence in violation of

O.R.C. §§ 2919.25(A) and 2919.25(D)(5). (ECF No. 9-1, Exhibit 1). On February 19, 2020,

Mr. Confere pled not guilty to all charges. (ECF No. 9-1, Exhibit 3).

On February 20, 2020, the grant jury issued a supplemental indictment charging Mr.

1 R.A. later attempted to recant her statement that Mr. Confere kicked her in the stomach and spoke in his favor

at sentencing.

Confere with one first-degree misdemeanor count of violating a protective order in violation

of O.R.C. §§ 2919.27(A)(1) and 2919.27(B)(2). (ECF No. 9-1. Exhibit 2). On February 26,

2020, Mr. Confere pled not guilty to the supplemental charge. (ECF No. 9-1, Exhibit 4). The

trial court also entered an order prohibiting Mr. Confere from having any contact with the

alleged victim. Id. On April 1, 2020, the grand jury issued a second supplemental indictment,

charging Mr. Confere with one unspecified-felony count of murder in violation of O.R.C. §§

2903.02(A), 2903.02(D), and 2929.02(B). (ECF No. 9-1, Exhibit 5). On April 8, 2020, Mr.

Confere pled not guilty to the supplemental charge. (ECF No. 9-1, Exhibit 6).

On February 1, 2022, Mr. Confere filed a motion for an evaluation of his competence

to stand trial and a request for a sanity evaluation. (ECF No. 9-1, Exhibits 7-8). On February

2, 2022, the trial court granted both motions. (ECF No. 9-1, Exhibit 9).

On October 26, 2022, Mr. Confere withdrew his plea of not guilty and pled guilty to

two second-degree felony counts of felonious assault. (ECF No. 9-1, Exhibit 10). In return,

the State agreed to dismiss the remaining charges. Id.

Prior to sentencing, counsel for Mr. Confere submitted multiple sentencing

memoranda. On November 15, 2022, one of Mr. Confere’s attorneys submitted a

memorandum asking the court to impose a sentence of no more than three years. (ECF No.

9-1, Exhibit 11). On the same day, another one of his attorneys submitted a memorandum that

did not request a specific sentence but that raised certain aspects of Mr. Confere’s background

and circumstances for the court’s attention. (ECF No. 9-1, Exhibit 12). On November 17,

2022, counsel submitted an amended memorandum, again asking the court to impose an

aggregate sentence of no more than three years. (ECF No. 9-1, Exhibit 13). On November 28,

2022, the trial court sentenced Mr. Confere to an aggregate term of 14 to 18 years. (ECF No.

9-1, Exhibit 14).

B. Direct Appeal

On January 4, 2023, Mr. Confere, through new appellate counsel, filed a notice of

appeal to the Ninth Appellate District. (ECF No. 9-1, Exhibit 15). Mr. Confere also filed a

motion for leave to file a delayed appeal, which the Ninth Appellate District granted on

January 27, 2023. (ECF No. 9-1, Exhibits 16-17). On April 30, 2023, Mr. Confere filed his

appellate brief, raising the following assignment of error:

1. The trial court abused its discretion when imposing sentence on appellant.

(ECF No. 9-1, Exhibit 18).

On September 13, 2023, the Ninth Appellate District affirmed. (ECF No. 9-1, Exhibit

22). Mr. Confere did not appeal the Ninth Appellate District’s decision to the Ohio Supreme

Court.

C. Motion for Modification of Sentence

On March 22, 2024, Mr. Confere, acting pro se, filed a postconviction motion in the

trial court for modification of his sentence, asking the court to reduce his sentence and to run

his sentences concurrently. (ECF No. 9-1, Exhibit 23). Mr. Confere argued that modification

was warranted because: (1) he suffers from intermittent explosive disorder (IED), bipolar

disorder, depression, and post-traumatic stress disorder (PTSD); (2) he was under the

influence of methamphetamines at the time of the crime; (3) he had no prior felony criminal

history; (4) the victim, R.A., recanted many of her accusations against him and submitted a

statement that Mr. Confere did not cause her hospitalization or the death of the unborn child;

(5) he received the ineffective assistance of trial counsel; (6) he received a longer sentence

than other individuals who committed similar offenses; (7) he wished to pursue rehabilitation;

and (8) he had a home plan upon release.

On April 23, 2024, the trial court denied Mr. Confere’s motion. (ECF No. 9-1, Exhibit

24). On September 6, 2024, Mr. Confere, acting pro se, filed a notice of appeal to the Ninth

Appellate District, raising a single assignment of error:

1. The trial court abused its discretion in denying appellant’s petition for post

conviction relief.

ECF No. 9-1, Exhibit 25).

On September 18, 2024, the State moved to dismiss Mr. Confere’s appeal as untimely.

(ECF No. 9-1, Exhibit 26). On September 20, 2024, the Ninth Appellate District dismissed

the appeal, holding that it was without jurisdiction over the appeal because Mr. Confere did

not timely file his notice of appeal. (ECF No. 9-1. Exhibit 27).

On October 29, 2024, Mr. Confere filed a notice of appeal to the Ohio Supreme Court.

(ECF No. 9-1, Exhibit 28). In his memorandum in support of jurisdiction, Mr. Confere argued

that his trial counsel was constitutionally ineffective and that the trial court should have

imposed a shorter sentence. (ECF No. 9-1, Exhibit 29). On November 26, 2024, the Ohio

Supreme Court declined to accept jurisdiction over the appeal. (ECF No. 9-1, Exhibit 31).

D. Federal Habeas Action

On December 9, 2024, Mr. Confere, acting pro se, filed his 28 U.S.C. § 2254 habeas

petition. (ECF No. 1). Mr. Confere’s habeas petition raises the following grounds for relief:

1. Mental health and substance abuse issues.

Supporting Facts: Mr. Confere suffers from Bipolar and Intermittent Explosive

Disorder (IED), which are impulse-centered disorders. Without treatment, they

cause little to no control over actions during episodes. They are caused by being

exposed to a traumatic environment, especially at a young age, and by biological

factors. Biologically, these illnesses are caused by chemical imbalances in the

brain and differences in the brain structure compared to a normal brain structure.

These illnesses can also be passed down genetically. They make it hard to

process emotions normally, which causes anger/irritability on heightened levels

. . . (Continued on State Motion).

2. Statement from the victim.

Supporting Facts: This is a statement from the victim in this case. We will refer

to her as R.A. “Dana did not cause my hospitalization and didn’t cause severe

harm or death of his baby, but he still committed minor domestic violence

against me. I didn’t need medical treatment after he committed domestic

violence towards me, but after I fell from the stairs I had to go to the hospital.

Not all my injuries were from him. Dana had unmedicated mental illness at the

time of the incident. He had psychosis, irritability, and he blacked out. He

thought I was going to hurt him and cried out for me to help him. I instigated

him by getting in his face and yelling at him, trying to get him to come back to

reality . . . The medical and photographic evidence did not prove the State’s

accusations, except for a certain degree of domestic violence, not severe harm

committed by Dana . . .” (Continued on State Motion).

3. Ineffective counsel.

Supporting Facts: Counsel failed to bring up that Mr. Confere self-medicated

with a small amount of methamphetamine that could of caused a negative

reaction with his mental illnesses during the time of his crime. Counsel also

failed to bring up accurate mental health issues that Mr. Confere suffers from.

The judge wasn’t told about Mr. Confere’s IED and bipolar disorder. Counsel

didn’t discuss the defense expert’s report as much as they should have. Counsel

failed to bring up that the medical records stated that the unborn child had no

injuries, but had nuchal cord issue. (Continued on State Motion).

4. Disparity in sentencing, home plan, rehabilitation, and aberrant behavior.

Supporting Facts: The State and its witnesses accused Mr. Confere of causing

severe harm to R.A. and her unborn child by placental abruption. However,

R.A.’s medical records stated that the unborn child had no injuries and no

abnormalities (unremarkable), but that the fetus experienced a potentially fatal,

“naturally occurring” medical condition called nuchal cord strangulation, in

which the cord was wrapped around the fetus’s neck in R.A.’s womb. In

addition, the defense’s medical expert did a complete forensic exam/autopsy of

the unborn child and exam of the medical records and found with great certainty

that R.A. didn’t experience placental abruption, and agreed that the fetus was

harmed by nuchal cord strangulation . . . (Continued on Additional info page and

State Motion).

Id. The Warden filed an answer/return of writ on April 18, 2025. (ECF No. 9). Mr.

Confere filed a traverse on May 16, 2025. (ECF No. 10). The Warden filed a reply to Mr.

Confere’s traverse on May 21, 2025. (ECF No. 11).

IV. STANDARDS OF REVIEW AND GOVERNING LAW

A. Jurisdiction

28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of

habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation of the Constitution or laws or treaties of

the United States.” A state prisoner may file a § 2254 petition in the “district court for the

district wherein such person is in custody or in the district court for the district within which

the State court was held which convicted and sentenced him[.]” 28 U.S.C. § 2241(d). The

Summit County Court of Common Pleas sentenced Mr. Confere, and the Court takes judicial

notice that Summit County is within this Court’s geographic jurisdiction. Accordingly, this

Court has jurisdiction over Mr. Confere’s § 2254 petition.

B. Exhaustion and Procedural Default

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), state prisoners must exhaust

all possible state remedies, or have no remaining state remedies, before a federal court can

review a petition for a writ of habeas corpus on the merits. 28 U.S.C. § 2254(b) and (c); see

also Rose v. Lundy, 455 U.S. 509 (1982). This entails giving the state courts “one full

opportunity to resolve any constitutional issues by invoking one complete round of the State's

established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In

other words, “the highest court in the state in which the petitioner was convicted [must have]

been given a full and fair opportunity to rule on the petitioner's claims.” Manning v.

Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The exhaustion requirement, however, “refers

only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S.

107, 125 n.28 (1982). It “does not require pursuit of a state remedy where such a pursuit is

clearly futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).

Procedural default is a related but “distinct” concept from exhaustion. Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain

consideration of a federal constitutional claim by state courts because he failed to: (1) comply

with a state procedural rule that prevented the state courts from reaching the merits of the

petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies

were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle,

456 U.S. at 125 n.28; Williams, 460 F.3d at 806. In determining whether there has been a

procedural default, the federal court looks to the last explained state-court judgment. Ylst v.

Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).

A claim is fairly presented when it has been asserted as a federal constitutional issue at every

stage of the state court review process. Thompson v. Warden, Belmont Corr. Inst., 598 F.3d

281, 285 (6th Cir. 2010); Williams, 460 F.3d at 806.

The Sixth Circuit has developed a four-part test to determine whether a procedural

default precludes a federal court from reaching a petitioner’s claim: (1) whether there is a

state procedural rule that is applicable to the petitioner’s claim and that the petitioner failed

to comply with; (2) whether the state court “actually enforced” the state procedural rule; (3)

whether the rule is an “adequate and independent” state ground on which the state can rely to

foreclose review of a federal claim; and (4) whether the petitioner can demonstrate cause for

his failure to follow the procedural rule and actual prejudice from the alleged constitutional

error. Barton v. Warden, Southern Ohio Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015)

(quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). These factors are commonly

known as the “Maupin” factors.

As the fourth Maupin factor indicates, if a procedural default has occurred, the default

can be excused and will not preclude consideration of a claim on federal habeas review if the

petitioner can demonstrate: (1) “cause for the default and actual prejudice as a result of the

alleged violation of federal law;” or (2) “failure to consider the claim will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). A

“fundamental miscarriage of justice” can occur only when the procedurally defaulted claim –

supported by new reliable evidence not presented at trial – would establish that the petitioner

was “actually innocent” of the offense. Schlup v. Delo, 513 U.S. 298, 324 (1995); Lundgren

v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).

C. Cognizable Federal Claim

Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody “only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” A petitioner's claim is not cognizable on habeas review if it “presents no federal issue

at all.” Glaze v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18,

2022) (quoting Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in

application of state law . . . are usually not cognizable in federal habeas corpus.” Bey v.

Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citing Walker v. Engle, 703 F.2d 959, 962 (6th

Cir. 1983)); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province

of a federal habeas court to reexamine state court determinations on state law questions.”).

A federal habeas court does not function as an additional state appellate court; it does

not review state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610,

614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead,

“federal courts must defer to a state court's interpretation of its own rules of evidence and

procedure” in considering a habeas petition. Id. (quotation omitted). Moreover, “the doctrine

of exhaustion requires that a claim be presented to the state courts under the same theory in

which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir.

1998).

D. AEDPA Standard of Review

AEDPA provides in relevant part as follows:

(d) 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.

(Id.)

To determine whether relief should be granted, the Court must use the “look-through”

methodology and look to the “last explained state-court judgment” on the petitioner's federal

claim. Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We

think that a presumption which gives them no effect—which simply ‘looks through’ them to

the last reasoned decision—most nearly reflects the role they are ordinarily intended to

play.”); Wilson v. Sellers, 138 S. Ct. 1188, 1193 (2018) (“We conclude that federal habeas

law employs a ‘look through’ presumption.”).

“A decision is ‘contrary to’ clearly established federal law when ‘the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or

decides a case differently than the Supreme Court has on a set of materially indistinguishable

facts.’” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S.

362, 412-13 (2000)). “Clearly established Federal law for purposes of § 2254(d)(1) includes

only the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” White v.

Woodall, 572 U.S. 415, 419 (2014) (quotations and citations omitted). “[U]nder the

unreasonable application clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003). “The unreasonable application clause requires the state court decision to be more than

incorrect or erroneous”—it must be “objectively unreasonable.” Id.

Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for

a prior state court decision rejecting a claim, the federal court may overturn the state court's

decision only if it was ‘based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Burt v. Titlow, 571 U.S. 12, 18 (2013)

(quoting 28 U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination

of the facts” under § 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins

v. Smith, 539 U.S. 510, 528 (2003). A state court's factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance. Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing

the record might disagree” about the finding in question, “on habeas review that does not

suffice to supersede the trial court's . . . determination.” Rice v. Collins, 546 U.S. 333, 341-

42 (2006). The prisoner bears the burden of rebutting the state court's factual findings “by

clear and convincing evidence.” Burt, 571 U.S. at 18 (citing 28 U.S.C. § 2254(e)(1)).

For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant

to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by

AEDPA, § 2254(d) is meant only to stop short of imposing a complete bar on federal-court

relitigation of claims already rejected in state proceedings.” Id. at 103. “It preserves authority

to issue the writ in cases where there is no possibility [that] fairminded jurists could disagree

that the state court’s decision conflicts with this Court's precedents” and “goes no further.”

Id. Thus, in order to obtain federal habeas corpus relief, “a state prisoner must 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.

V. ANALYSIS

Mr. Confere asserts four grounds for relief. In three of those grounds (Grounds One,

Two, and Four), he argues that the trial court should have imposed a more lenient sentence in

light of mitigating factors or evidence undercutting the State’s version of events. In Ground

Three, Mr. Confere argues that he received the ineffective assistance of counsel during the

sentencing phase. I will address Mr. Confere’s ineffective assistance claim first before turning

to his sentencing-based claims.

A. Ground Three: Ineffective Assistance of Trial Counsel

Mr. Confere asserts that he received the ineffective assistance of trial counsel because

his counsel failed to make, or to advance with sufficient vigor, various arguments at

sentencing. He also argues that his counsel filed multiple, inconsistent sentencing

memoranda. The Warden argues that Mr. Confere procedurally defaulted on this claim. I

agree. I also conclude that Mr. Confere’s claim fails on the merits.

1. Procedural Default

As noted above, a petitioner procedurally defaults on a claim where the petitioner fails

to comply with a state court procedural rule that prevents the state court from reaching the

merits of the petitioner’s claim. Williams, 460 F.3d at 806. As the Warden correctly argues,

Mr. Confere procedurally defaulted on his ineffective assistance claim by failing to comply

with Ohio’s procedural rule governing the deadline for filing appeals.

Mr. Confere first raised his ineffective assistance of trial counsel claim in his

postconviction motion to reduce his sentence. (ECF No. 9-1, Exhibit 23). The trial court

denied that motion on April 22, 2024. (ECF No. 9-1, Exhibit 24). Under Ohio Rule of

Appellate Procedure 4(A)(1), Mr. Confere had 30 days, or until May 22, 2024, to file a notice

of appeal to the Ninth Appellate District. See Ohio R. App. P. 4(A)(1). However, Mr. Confere

did not file his appeal until September 6, 2024, more than three months later. (ECF No. 9-1,

Exhibit 25). The Ninth Appellate District enforced the procedural bar when it dismissed Mr.

Confere’s appeal as untimely. (ECF No. 9-1, Exhibit 27). The Ohio Supreme Court then

declined to accept jurisdiction without comment, leaving the Ninth Appellate District’s ruling

as the last explained state court judgment on the issue. See Ylst, 501 U.S. at 805.

It is well-settled that a state court’s rejection of an appeal as untimely is an adequate

and independent ground that results in a procedural default under Maupin. See Smith v.

Warden, Toledo Corr. Inst., 780 F. App’x 208, 219 (6th Cir. 2019) (“denying a postconviction

motion or appeal based on untimeliness is an independent and adequate state procedural

ground.”) (citing cases). Mr. Confere thus procedurally defaulted on his first, second, and

fourth grounds for relief by failing to comply with Ohio’s appellate deadlines.

Mr. Confere’s procedural default can be excused if he demonstrates either cause and

prejudice or that failure to consider his claim on the merits would result in a fundamental

miscarriage of justice. Coleman, 501 U.S. at 750. In his traverse, Mr. Confere argues that he

failed to timely appeal the trial court’s denial of his postconviction motion because he was

acting pro se during the postconviction process. However, it is well-settled that a prisoner’s

pro se status or ignorance of the law does not constitute “cause” to excuse a procedural

default. See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (“ignorance of the law and

procedural requirements for filing a timely notice of appeal is insufficient to establish cause

to excuse [a] procedural default”); Garcia v. Eppinger, No. 1:17CV1090, 2020 WL 3037090,

at *16 (N.D. Ohio May 11, 2020) (“a prisoner's pro se status and ignorance of the law do not

constitute adequate cause to excuse a procedural default.”), report and recommendation

adopted, 2020 WL 3036028 (N.D. Ohio June 5 2020).

Mr. Confere also argues that his procedural default should be excused due to

ineffective assistance of counsel because a paralegal misadvised him regarding the deadline

to file an appeal. Ineffective assistance of counsel can, in certain circumstances, constitute

cause to excuse a procedural default. See Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013).

However, “[i]neffective assistance of counsel may constitute cause for a procedural default

only where a petitioner has a Sixth Amendment right to counsel,” and “[t]he right to counsel

extends to the first appeal of right but not to discretionary appeals or post-conviction collateral

proceedings.” Balducci v. Foley, No. 1:22-CV-00299-JRK, 2024 WL 4695906, at *18 (N.D.

Ohio Nov. 6, 2024) (citing Coleman, 501 U.S. at 752; Pennsylvania v. Finley, 481 U.S. 551,

555 (1987)), report and recommendation adopted, 2025 WL 653458 (N.D. Ohio Feb. 28,

2025).

Notwithstanding that general rule, Mr. Confere argues that he had a right to counsel

in connection with his postconviction motion under two Supreme Court decisions, Martinez

v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). In Martinez, the

Supreme Court recognized a “narrow exception” to Coleman’s general rule that a defendant

has no constitutional right to counsel in postconviction proceedings. 566 U.S. at 9. Under that

exception “[w]here, under state law, claims of ineffective assistance of trial counsel must be

raised in an initial-review collateral proceeding, a procedural default will not bar a federal

habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-

review collateral proceeding, there was no counsel or counsel in that proceeding was

ineffective.” Id. at 17. In Trevino, the Court expanded Martinez’s scope, holding that Martinez

also applies where a “state procedural framework, by reason of its design and operation,

makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity

to raise a claim of ineffective assistance of trial counsel on direct appeal . . . .” 569 U.S. at

429.

The application of Martinez and Trevino to Ohio’s ineffective assistance regime is not

entirely clear. Ohio has a “dual-track system” for ineffective assistance of counsel claims.

Hill v. Mitchell, 842 F.3d 910, 936 (6th Cir. 2016); see also McGuire v. Warden, Chillicothe

Corr. Inst., 738 F.3d 741, 751 (6th Cir. 2013). Under that system, grounds for relief that are

based on evidence wholly within the trial record must be brought on direct appeal, while

claims based on evidence outside the trial record cannot be brought on direct review and must

instead be raised in a petition for state post-conviction relief. McGuire, 738 F.3d at 751 (citing

State v. Cole, 2 Ohio St. 3d 112, 443 N.E.2d 169, 171 (1982)).

The Sixth Circuit “ha[s] not yet decided” whether Martinez and Trevino apply to

Ohio’s dual-track system. Mammone v. Jenkins, 49 F.4th 1026, 1048 (6th Cir. 2022). I

likewise need not resolve that question here, as Martinez and Trevino cannot apply unless the

petitioner’s ineffective assistance of trial counsel claim is “substantial.” Martinez, 566 U.S.

at 16; Mammone, 49 F.4th at 1048-49. As set forth below, Mr. Confere’s ineffective

assistance of trial counsel claim is not substantial. Thus, regardless of whether Martinez and

Trevino could apply in theory, they do not apply under the circumstances presented here. I

therefore recommend that the Court dismiss Mr. Confere’s third ground for relief as

procedurally defaulted.

2. Merits

Alternatively, I recommend that the Court deny Mr. Confere’s third ground for relief

on the merits because he has not shown that he received the ineffective assistance of trial

counsel or that any alleged ineffectiveness prejudiced him.

A petitioner claiming ineffective assistance of counsel must show that: (1) counsel’s

representation “fell below an objective standard of reasonableness,” such that he was not

performing as counsel guaranteed under the Sixth Amendment; and (2) counsel’s deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984).

The right to effective assistance of counsel “extends to all critical stages of a criminal

proceeding,” including the plea bargain phase. Byrd v. Skipper, 940 F.3d 248, 255 (6th Cir.

2019) (citing Lafler v. Cooper, 566 U.S. 156, 163 (2012); Padilla v. Kentucky, 559 U.S. 356,

373 (2010)).

Under the first prong of Strickland, the petitioner must overcome the “strong[]

presum[ption that counsel] rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. For prejudice,

the petitioner must show that there was a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The

Strickland standard is “extremely deferential.” Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir.

2017) (quoting Strickland, 466 U.S. at 690). “[T]he goal is not to ensure that a criminal

defendant be afforded perfect counsel, but rather ‘to ensure that the adversarial testing process

works to produce a just result under the standards governing decision.” Id. (quoting

Strickland, 466 U.S. at 687).

Mr. Confere argues that his counsel was ineffective at sentencing in a number of

respects, including: (1) not arguing that Mr. Confere was under the influence of

methamphetamine at the time of the incident; (2) failing to raise Mr. Confere’s mental health

issues; (3) not sufficiently relying on a report from a defense expert stating that the unborn

child died from nuchal cord strangulation rather than a placental abruption and that Mr.

Confere’s attack did not cause the child’s death; (4) not raising the victim’s recantation of her

initial statement to the police; (5) not requesting inpatient treatment; and (6) submitting

multiple, conflicting sentencing memoranda.

Mr. Confere’s claim fails on both Strickland prongs.2 Beginning with the performance

prong, the transcript of the sentencing hearing belies Mr. Confere’s argument that his counsel

failed to make, or to adequately press home, arguments in favor of a more lenient sentence.

For example, while Mr. Confere asserts that his counsel did not raise Mr. Confere’s

intermittent explosive disorder or bipolar disorder, counsel specifically informed the trial

court that Mr. Confere has a history of mental health issues and requested that Mr. Confere

undergo a mental health evaluation and receive treatment. (ECF No. 9-3, 37:8-38:9; 41:11-

42:7). Similarly, despite Mr. Confere’s assertion to the contrary, counsel also expressly

requested that the court place Mr. Confere in a residential treatment facility. Id. at 42:22-43:7.

Counsel further argued that Mr. Confere had a limited prior criminal history with no prior

felonies. Id. at 36:12-25. Finally, counsel challenged the State’s version of events, informing

2 Citing Tollett v. Henderson, 411 U.S. 258 (1973), the Warden argues that Mr. Confere has waived any

ineffective assistance of counsel arguments to the extent he bases his claim on alleged ineffectiveness predating

the plea. While the Warden is right regarding the legal principle, see id. at 267, Mr. Confere does not appear to

be asserting any claims based on counsel’s pre-plea performance. Instead, his arguments relate to counsel’s

failure to make or sufficiently pursue certain arguments at sentencing.

the court that the defense’s expert concluded that the unborn child did not die of a placental

abruption and that the child may have instead died from umbilical cord strangulation. Id. at

33:1-35:8.

In sum, based on my review of the transcript, counsel zealously advocated for Mr.

Confere during the sentencing hearing, raising a number of potential mitigating factors and

evidentiary disputes, including many of the arguments that Mr. Confere faults his counsel for

not raising. Mr. Confere has not shown that his counsel’s performance at the hearing fell

below an objective standard of reasonableness. Nor has Mr. Confere shown that counsel

rendered constitutionally inadequate assistance simply because counsel submitted multiple

sentencing memoranda that Mr. Confere alleges contained conflicting information.

Mr. Confere also cannot demonstrate prejudice. In addition to counsel’s argument at

the sentencing hearing, Mr. Confere himself engaged in an extended colloquy with the trial

court. During that exchange, Mr. Confere and the trial judge discussed his mental health

issues (ECF No. 9-3, 51:19-57:17), the fact that he was under the influence of marijuana and

methamphetamine at the time of the incident (id. at 58:20-59:7), and the report from Mr.

Confere’s expert indicating that he did not cause the unborn child’s death (id. at 68:13-70:5).

The trial court also heard from the victim herself, who told the court that she lied in her initial

statement to the police and that Mr. Confere assaulted her but did not kick her in the abdomen.

Id. at 21:3-22:7. The victim further told the trial court that Mr. Confere did not cause the death

of the unborn child and that he had been excited for her birth. Id. at 21:3-22:7; 29:5-15.

Despite hearing additional statements from Mr. Confere and the victim regarding the

topics that Mr. Confere believes his counsel should have raised or advanced more forcefully,

the trial court sentenced Mr. Confere to a term of 14 to 18 years. There is no reason to think

that additional argument from counsel on those issues would have produced a different result.

Nor is there any reason to think that Mr. Confere would have received a more lenient sentence

had his trial counsel not submitted multiple sentencing memoranda. Mr. Confere has not

satisfied either prong of Strickland, and I alternatively recommend that the Court deny his

third ground for relief on the merits.

B. Grounds One, Two, and Four

In his first, second, and fourth grounds for relief, Mr. Confere asserts that the trial

court should have imposed a shorter sentence in light of various mitigating factors and

evidence that he believes undercuts the State’s version of events. In Ground One, Mr. Confere

argues that he suffers from mental health issues that inhibit his ability to control his impulses.

In Ground Two, Mr. Confere argues that the victim submitted a statement averring that Mr.

Confere was not responsible for most of her injuries and did not cause the death of her unborn

child. In Ground Four, Mr. Confere raises several arguments, including that: his behavior was

aberrant; he received a longer sentence than other offenders who committed similar crimes;

he hopes to rehabilitate; and he has a home plan on release. The Warden responds that Mr.

Confere procedurally defaulted on all three claims and that his claims are not cognizable in a

federal habeas proceeding. I agree with the Warden on both arguments.3

1. Procedural Default

As with his ineffective assistance of counsel claim, Mr. Confere procedurally

defaulted on Grounds One, Two, and Four because he did not timely appeal the trial court’s

order denying his motion to reduce his sentence, and because the Ninth Appellate District

enforced the procedural bar when it dismissed his appeal. See ECF No. 9-1, Exhibits 25, 27;

Smith, 780 F. App’x at 219.

Mr. Confere also procedurally defaulted on these claims because he did not fairly

present them to the Ohio courts. “To determine whether a petitioner has fairly presented a

claim in state court, [a court] ask[s] whether the petitioner: (1) relied upon federal cases

employing constitutional analysis; (2) relied upon state cases employing federal constitutional

analysis; (3) phrased the claim in terms of constitutional law or in terms sufficiently particular

to allege a denial of a specific constitutional right; or (4) alleged facts well within the

mainstream of constitutional law.” Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017). “While

a petitioner need not cite ‘chapter and verse’ of constitutional law, ‘general allegations of the

3 Mr. Confere raised a portion of his fourth ground for relief in his direct appeal to the Ninth Appellate District,

arguing that his actions constituted aberrant behavior. (ECF No. 9-1, Exhibit 18). Mr. Confere failed to appeal

the Ninth Appellate District’s decision affirming the trial court to the Ohio Supreme Court. While the deadline

for him to do so has long since expired, Rule 7.01(A)(4) of the Ohio Supreme Court Rules of Practice provides

that an appellant in a felony case may file a motion for a delayed appeal when the appellate deadline has expired.

See Ohio S. Ct. Prac. R. 7.01(A)(4). Mr. Confere thus has a potential avenue to raise the claim before the Ohio

Supreme Court, which raises the possibility that his claim is unexhausted. § 2254(c) provides that a claim is not

exhausted if the petitioner has “the right under the law of the State to raise, by any available procedure, the

question presented.” 28 U.S.C. § 2254(c); see also Brown v. Warden, Lake Erie Corr. Inst., No. 1:11cv2765,

2014 WL 132367, at *11 (N.D. Ohio Jan. 14, 2014) (“Courts in this District have held that a petitioner’s federal

habeas claims are not exhausted where he may yet file a motion for delayed appeal in the Supreme Court of

Ohio and, therefore, has a potential remaining state avenue of relief.”). In O’Sullivan, however, the Court held

that § 2254(c) does not “requir[e] a state prisoner to invoke any possible avenue of state court review . . . .” 526

U.S. at 844. Rather, a petitioner must only give the state courts “one full opportunity” to resolve any

constitutional issue by invoking a “complete round” of the state’s appellate review process. Id. at 845. Mr.

Confere raised his fourth ground for relief in his postconviction motion, which he appealed up to the Ohio

Supreme Court, giving the state courts one full opportunity to review his claim. He has thus exhausted his fourth

ground for relief even though another potential mechanism remains open to him under Ohio law.

denial of rights to a “fair trial” and “due process” do not “fairly present claims” that specific

constitutional rights were violated.’” Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006)

(quoting Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004)).

During the state court proceedings, Mr. Confere argued his first, second, and fourth

grounds for relief as questions of state law, not federal constitutional claims. He did not rely

on state or federal cases employing a federal constitutional analysis, did not phrase his claims

in terms of constitutional law, and did not allege any facts within the mainstream of federal

constitutional law. Instead, he argued that the trial court should have given him a shorter

sentence under Ohio’s sentencing rules. (ECF No. 9-1, Exhibits 23, 25, 29). Because Mr.

Confere did not present his claims to the Ohio courts as issues of federal constitutional law,

he has procedurally defaulted on them. See Hand, 871 F.3d at 418.

Mr. Confere has also again failed to establish cause and prejudice to excuse his

procedural default. As discussed above, his pro se status does not constitute cause. Bonilla,

370 F.3d at 498; Garcia, 2020 WL 3037090, at *16. Moreover, the Martinez exception cannot

save Mr. Confere’s claims because that exception applies only to claims for ineffective

assistance of trial counsel. See Davila v. Davis, 582 U.S. 521, 524-25 (2017) (holding that

Martinez applies to “a single claim—ineffective assistance of trial counsel—in a single

context—where the State effectively requires a defendant to bring that claim in state

postconviction proceedings rather than on direct appeal”); Hale v. Shoop, No. 1:18-cv-504,

2021 WL 1215793, at *98 (N.D. Ohio Mar. 31, 2021) (“Martinez and Trevino’s equitable

exception allowing the ineffective assistance of post-conviction counsel to constitute cause

for procedural default applies only to claims of ineffective assistance of trial counsel; it does

not apply to any other claims . . . .”). I therefore recommend that the Court dismiss Mr.

Confere’s first three grounds for relief as procedurally defaulted.

2. Cognizability

Alternatively, I recommend that the Court dismiss Grounds One, Two, and Four

because they are not cognizable. As noted above, “federal habeas corpus relief does not lie

for errors of state law.” Estelle, 502 U.S. at 67. Rather, “it is only noncompliance with federal

law that renders a State’s criminal judgment susceptible to collateral attack in the federal

courts.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010). Accordingly, “[c]ourts have consistently

held that a habeas petitioner cannot challenge the interpretation and application of Ohio’s

sentencing laws because ‘a state court’s interpretation and application of Ohio’s sentencing

laws is not cognizable in a federal habeas corpus action.’” Fritz v. Fender, No. 1:23 CV

00221, 2023 WL 7474054, at *1 (N.D. Ohio Oct. 23, 2023) (citing Croce v. Miller, No. 1:15-

CV-1758, 2017 WL 3394046, at *22 (N.D. Ohio July 12, 2017)); see also Taeusch v. Sloan,

No. 1:19-cv-282, 2022 WL 409266, at *3 (N.D. Ohio Feb. 10, 2022) (holding that a “legal

challenge relating to mitigating factors for sentencing under Ohio law” is not cognizable on

habeas review).

In Grounds One, Two, and Four, Mr. Confere argues that the trial court should have

imposed a more lenient sentence because he did not cause most of the victim’s injuries or the

death of the unborn child, and because Mr. Confere believes a number of mitigating factors

are present. Those arguments go directly to the Ohio courts’ interpretation and application of

Ohio’s sentencing laws, and are not cognizable in this proceeding.

Mr. Confere contends that his sentencing arguments raise a federal constitutional

question because 18 U.S.C. § 3553 sets out certain factors that a court must consider when

imposing a sentence. However, § 3553 is a federal statute governing sentences imposed on

defendants convicted of federal crimes. See 18 U.S.C. § 3551(a) (“Except as otherwise

specifically provided, a defendant who has been found guilty of an offense described in any

Federal statute . . . shall be sentenced in accordance with the provisions of this chapter so as

to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2)”)

(emphasis added). Mr. Confere was not convicted of any federal crimes, and § 3553 has no

application to his sentence. Accordingly, his first, second, and fourth grounds for relief do not

raise any federal constitutional claims, and I alternatively recommend that the Court dismiss

them as non-cognizable.4

VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY

A. Legal Standard

As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not

appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate

of appealability. The statute further provides that “[a] certificate of appealability may issue .

. . only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Although the statute does not define what constitutes a “substantial showing” of a

denial of a constitutional right, the burden on the petitioner is obviously less than the burden

for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the

courts that have considered the issue have concluded that “[a] ‘substantial showing’ requires

4 In his traverse, Mr. Confere requests that the Court hold an evidentiary hearing. Under § 2254(e)(2), if the

petitioner has failed to develop the factual basis for the claim in state court, the court may hold an evidentiary

hearing only in limited circumstances, including where the factual predicate of the claim could not have been

previously discovered with due diligence. See 28 U.S.C. § 2254(e)(2). “When deciding whether to grant an

evidentiary hearing, a court must consider whether such a hearing could enable the habeas petitioner to prove

the habeas petition’s factual allegations, which, if true, would entitle the petitioner to federal habeas relief on

his claim or claims.” Newton v. Turner, No. 1:20-cv-2799, 2024 WL 1853042, at *4 (N.D. Ohio Apr. 29, 2024)

(citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Because Mr. Confere’s claims are procedurally

defaulted and without merit, an evidentiary hearing would not enable him to prove claims entitling him to relief.

Accordingly, I recommend that the Court not grant Mr. Confere an evidentiary hearing.

the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court

could resolve the issues (in a different manner); or that the questions are adequate to deserve

encouragement to proceed further.’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999)

(quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that

certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).

Rule 11 of the Rules Governing Section 2254 Cases in the United States District

Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),

28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue

or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C.

§ 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which

specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule

11 requirement that the court either grant or deny the certificate of appealability at the time

of its final adverse order, a recommendation regarding the certificate of appealability issue is

included here.

B. Analysis

Mr. Confere has not made a substantial showing of a denial of a constitutional right

for the reasons set forth above. Because jurists of reason would not find these conclusions

debatable, I recommend that no certificate of appealability issue in this case.

VII. RECOMMENDATION

For the foregoing reasons, I RECOMMEND that the Court DISMISS and/or DENY

Mr. Confere’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend

that the Court not grant him a certificate of appealability.

Dated: September 5, 2025 /s/ Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b)

within fourteen (14) days after being served with a copy thereof, and

failure to file timely objections within the fourteen (14) day period

shall constitute a waiver of subsequent review, absent a showing of

good cause for such failure. Such party shall file with the Clerk of Court,

and serve on the Magistrate Judge and all parties, 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. Any party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. The

District Judge to whom the case was assigned shall make a de novo

determination of those portions of the report or specified proposed findings

or recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

Magistrate Judge. The District Judge need conduct a new hearing only in

such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also

receive further evidence, recall witnesses or recommit the matter to the

Magistrate Judge with instructions.

Id. (emphasis added).

Failure to file objections within the specified time may result in the forfeiture or

waiver of the right to raise the issue on appeal either to the district judge or in a subsequent

appeal to the United States Court of Appeals, depending on how or whether the party responds

to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).

Objections must be specific and not merely indicate a general objection to the entirety of the

report and recommendation; a general objection has the same effect as would a failure to

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, objections should focus on specific concerns and not merely restate

the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same

argument that was presented to the Magistrate Judge without specific objections ‘wastes

judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).