MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

Before the Court is the Report and Recommendation of Magistrate Judge David A. Ruiz, recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. No. 18 ["R&R"].) Petitioner filed objections. (Doc. No. 20 ["Obj."].) Respondent filed neither his own objections nor any response to petitioner's objections. Pursuant to Fed. R. Civ. P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the objections. For the reasons discussed below, the R&R is accepted and the objections are overruled.

I. BACKGROUND

In February 2013, petitioner was indicted by a grand jury on, inter alia, two counts of aggravated vehicular assault (both second degree felonies under Ohio law) and one count of operating a vehicle under the influence of alcohol, a drug of abuse, or a combination of them ["OVI"] (a first degree misdemeanor). The charges resulted from an incident wherein petitioner, while intoxicated and under a license suspension, drove his vehicle into an occupied home, seriously injuring three residents (including a three-year old boy), and then fled the scene. (Doc. No. 12-1, Return of Writ/Appendix1 ["App."] at 551-56.2) On February 21, 2013, represented by counsel, petitioner pleaded guilty to all three counts and the trial court entered a judgment of conviction. (Id. at 558-63.)3 He was thereafter sentenced to eight years each for the aggravated vehicular assaults, to be served consecutively, for an aggregate sentence of 16 years imprisonment. In addition, he was ordered to serve 180 days local incarceration following the prison sentence. (Id. at 564-68.)

Represented by new counsel, petitioner filed a direct appeal. (Id. at 569-75.)4 On December 9, 2013, the Eleventh District Court of Appeals of Ohio affirmed the judgment and, on April 23, 2014, the Ohio Supreme Court declined to accept jurisdiction. (Id. at 615-23; 663.)5

While his direct appeal was pending, on February 24, 2014, petitioner (proceeding pro se) filed an application to reopen his appeal pursuant to App. R. 26(B). (Id. at 664-72.)6 The court of appeals reopened the appeal and appointed counsel to represent petitioner. (Id. at 680-89.)7 On June 8, 2015, the court of appeals affirmed the trial court's judgment. (Id. at 716-23.) Petitioner filed a pro se appeal to the Ohio Supreme Court (id. at 724-25),8 but on October 28, 2015, the court declined to accept jurisdiction. (Id. at 770.) On May 16, 2016, the United States Supreme Court denied a petition for writ of certiorari. Vanderhoof v. Ohio, 136 S.Ct. 2016 (2016).

The instant petition was filed on March 2, 2016. (Doc. No. 1, Petition ["Pet."].) Proceeding pro se, petitioner raised two grounds for relief:

(Id. at 5, 7 (verbatim).)

The R&R recommends dismissal of the petition because, as to ground one, petitioner has failed to demonstrate that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law and, as to ground two, petitioner has defaulted the claim by not first presenting it to the state courts as a discrete federal claim.

II. DISCUSSION

A. The Standard of Review

Under Fed. R. Civ. P. 72(b)(3), "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." After review, the District Judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C. § 636(b)(1)(C).

In conducting its de novo review in a habeas context, this Court must be mindful of the requirements of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which provides in relevant part:

28 U.S.C. § 2254(d).9 "Section 2254(d) reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03, 131 S.Ct. 770, 178 L. Ed. 2d 624 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979) (Stevens, J., concurring in judgment)).

B. De Novo Review

Petitioner objects to the R&R only with respect to its recommendation on ground two.10 He asserts that it was error to conclude that his underlying claim regarding merger was not presented to the state courts as a discrete federal claim11 and was, therefore, not exhausted,12 resulting in procedural default because it can no longer be brought in state court. In the alternative, petitioner argues that exhaustion should be excused because it was caused by the state courts' refusal to recognize his presentation of the merger issue.

In support of his objection, petitioner points specifically to places in the record where he claims to have separately presented a discrete federal claim based on double jeopardy. First, he cites Exhibit 17, the brief filed by his appointed counsel in support of his application to reopen his appeal. (See Obj. at 816, citing App. at 690.) There, counsel raised the following assignment of error:

(App. at 696.)13 The claim raised in that assignment of error is a Sixth Amendment claim of ineffective assistance of counsel, where counsel's claimed ineffectiveness was his failure to raise an allegedly viable underlying claim relating to merger of charges. The underlying claim would have been a double jeopardy claim had it been separately raised; but it was not, even though the brief does indeed argue that the failure to merge the charges constituted double jeopardy. The entire double jeopardy argument in the cited brief is set forth to make one point: counsel (both trial and appellate) were ineffective for failing to raise that argument. Petitioner asserts that further evidence that the double jeopardy claim was "fairly presented" is the fact that the Ohio court of appeals addressed the issue in its June 8, 2015 ruling. (Obj. at 816, citing App. at 716, 719-20 (¶¶ 13-15).)

Notwithstanding petitioner's references to the record, although an ineffectiveness of counsel claim was fairly presented, the actual underlying claim was not. The Sixth Circuit has repeatedly held that "bringing an ineffective assistance claim in state court based on counsel's failure to raise an underlying claim does not preserve the underlying claim for federal habeas review because `the two claims are analytically distinct.'" Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008) (quoting White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)). In Davie, the court explained that, due to the "very nature" of a Rule 26(B) application, which permits "a defendant in a criminal case [to] apply for reopening of the appeal . . . based on a claim of ineffective assistance of appellate counsel[,] . . . the [state] court's holding must be read as pertaining to the merits of the ineffective assistance claim, not the underlying . . . claim[.]" Id. (internal quotation marks and citation omitted). "From this, it follows that [petitioner's] Rule 26(B) application cannot be construed as raising the substantive . . . claim." Id. Petitioner's objection with respect to ground two is overruled.14

Petitioner argues, in the alternative, that "[f]utility excuses exhaustion." (Obj. at 817.) Petitioner cites Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L. Ed. 2d 440 (2005) and Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L. Ed. 2d 640 (1991) for the proposition that "[t]here was no procedural default of the double jeopardy claim in the state courts because there was no State procedural rule prohibiting the state courts or invoked by them, from reaching the merite [sic] of the double jeopardy claim." (Id., n. 1, citing Wainwright v. Sykes, 433 U.S. 72, 81-82, 97 S.Ct. 2497, 53 L. Ed. 2d 594 (1977).) Petitioner is completely overlooking the fact that he never raised a double jeopardy claim, but only an ineffective assistance of counsel claim. Even so, none of the Supreme Court cases that he cites offers any support.

Rhines teaches that a habeas petition containing both exhausted and unexhausted claims (a so-called "mixed" petition) should either (1) be stayed to permit exhaustion, but only if a petitioner who has not engaged in dilatory tactics shows good cause for his failure to exhaust and has a claim that is potentially meritorious, or (2) be amended to remove the unexhausted claim, but only if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.

In Coleman, the petitioner had presented in a state habeas proceeding several federal claims that he had not presented on direct appeal. After his claims were rejected by the state courts, he raised them in a federal habeas petition, along with several other claims that he had raised on direct appeal. The Supreme Court affirmed the holding of the court of appeals that the claims not raised on direct appeal were not subject to federal habeas review because they were defaulted under the state's procedural rules and the petitioner had not shown good cause to excuse the default.

In Sykes, petitioner brought a federal habeas action challenging the admissibility of inculpatory statements he made to the police, claiming he did not understand the Miranda warnings. The lower federal courts ruled that his failure to comply with the state's contemporaneous objection rule would not bar federal habeas review unless the right to object was deliberately bypassed for tactical reasons. The Supreme Court rejected that holding, applying the "well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts[,]" absent a showing of cause and prejudice, Sykes, 433 U.S. at 81, 90-91, even in the case of a state procedural rule.

Petitioner cites these three Supreme Court cases and suggests that he had "cause" for not raising his underlying double jeopardy claim in state court, that cause being the state courts' alleged "refus[al] to recognize" it. (Obj. at 817.) But other than that mere suggestion, there is no reasoned argument.

Petitioner's alternative to his sole objection also fails and is overruled.

III. CONCLUSION

For the reasons discussed above, petitioner's objection to the R&R is overruled and the R&R is accepted. The petition for writ of habeas corpus is denied and the case is dismissed. 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. § 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.