MICHAEL R. MERZ, Magistrate Judge.
This habeas corpus case brought under 28 U.S.C. § 2254 is before the Court on Petitioner's Objections (Doc. No. 18) to the Magistrate Judge's Report and Recommendations recommending dismissal with prejudice (the "Report," Doc. No. 15). Chief Judge Dlott has recommitted the case for reconsideration in light of the Objections (Doc. No. 19).
Bennett was charged with and convicted of ten counts of sexual battery and fifty counts of rape in the Brown County Common Pleas Court. He brought a prior habeas corpus case in this Court challenging these convictions, Case No. 1:09-cv-622. That case was assigned to District Judge Bertelsman and Magistrate Judge Wehrman who granted a conditional writ upholding Bennett's claim that the charges made in the indictment were insufficiently differentiated to permit conviction on all of them. Applying the leading Sixth Circuit case, Valentine v. Konteh, 395 F.3d 626 (6
Bennett, 782 F. Supp. 2d at 499. Judge Bertelsman adopted Judge Wehrman's Report and Bennett did not appeal. The State of Ohio complied with the conditional writ, re-sentencing Bennett on only those counts Judge Wehrman found were sufficiently differentiated. Bennett did not challenge that compliance on direct appeal nor does he challenge it here. Rather, Bennett reargues in very conclusory terms the claims he previously made. That is, he does not make any particular argument against any of the findings Judge Wehrman made; he just claims generally that the charges were not sufficiently differentiated to satisfy due process.
In the Return of Writ Respondent argued the claims made in this new Petition were barred by the law of the case doctrine (Return of Writ, Doc. No. 10, PageID 59-60). Bennett made no response to that argument in his Reply and the Report recommended dismissal on that basis (Doc. No. 15, PageID 300-01). In his Objections, Bennett makes no mention of the law of the case doctrine. He writes several pages on the law applicable to successive habeas cases, but the Report concluded this case was not barred by the successive petition doctrine on the basis of the Supreme Court's decision in Magwood v. Patterson, 561 U.S. 320 (2010)(cited at Report, Doc. No. 15, PageID 301, n. 2).
Having won a substantial victory on his first habeas petition, Bennett simply wants more on the same basis he argued before. The law of the case doctrine prevents that result.
It is therefore again respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
