Smith v. Hill

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD A. SMITH,
Petitioner,
v.
LEON HILL, Warden,
Respondent.
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Case No. 1:22-cv-7
Judge J. Philip Calabrese
Magistrate Judge
Amanda M. Knapp
ORDER
Before the Court is the Magistrate Judge’s Report and Recommendation (ECF
No. 43) in this habeas action. 	The Magistrate Judge recommends that the Court
dismiss the petition for a writ of habeas corpus, which would have the effect of
denying relief.
In the Report and Recommendation, the Magistrate Judge summarized the
factual and procedural history of the case. 	(Id., PageID #1262–85.) 	In short,
Mr. Smith pleaded guilty to aggravated murder in 1988 after being bound over from
juvenile court. 	(Id., PageID #1261.) 	He was sentenced to 20 years to life in prison.
(Id.) 	After a successful appeal challenging his 1988 sentence, Mr. Smith was
resentenced in 2019 to life in prison with parole eligibility after 20 years. 	(Id.)
Petitioner unsuccessfully challenged his conviction on direct appeal and through
collateral proceedings in State court before commencing this action. 	(Id., PageID
#1289.)
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Petitioner asserts four grounds for relief. 	(ECF No. 17, PageID #100.) 	With
respect to ground one, the Magistrate Judge recommends that the Court dismiss the
claim as procedurally defaulted because Mr. Smith failed fairly to present the claim
of ineffective assistance of trial counsel, “let alone pursue that claim through the
State’s ordinary appellate review process,” and because Mr. Smith did not meet his
burden to show cause and prejudice or a fundamental miscarriage of justice to excuse
the default. (ECF No. 43, PageID #1288–94.) With respect to grounds two and three,
the Magistrate Judge recommends that the Court dismiss the claims as procedurally
defaulted because Mr. Smith failed properly to raise and present his claims of
ineffective assistance of counsel related to his 2019 resentencing at each level of State
court review, including not timely seeking review by the Supreme Court of Ohio, and
because Mr. Smith did not meet his burden to show cause and prejudice or a
fundamental miscarriage of justice to excuse the defaults. 	(Id., PageID #1294–98.)
With respect to ground four, the Magistrate Judge recommends that the Court deny
the claim of double jeopardy as non-cognizable because it concerns the State court’s
application of the doctrine of res judicata and does not support a cognizable claim
under 	the 	Double 	Jeopardy 	Clause 	of 	the 	Fifth 	Amendment. 	(Id., 	PageID
#1298–1301.)
The Report and Recommendation stated that any objections were due fourteen
days after service and advised Petitioner that failure to timely object may waive the
right 	to 	appeal 	the 	Court’s 	order. 	(Id., 	PageID 	#1301.) 	The 	Report 	and
Recommendation was filed on the docket on December 16, 2025 (ECF No. 43) and
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mailed to Petitioner the same day. Nonetheless, Petitioner has failed to object to the
Magistrate Judge’s Report and Recommendation.
Under the law of this Circuit, “failure to object to a magistrate judge’s Report
and Recommendation results in a waiver of appeal on that issue as long as the
magistrate 	judge 	informs 	parties 	of 	that 	potential 	waiver.” 	United 	States 	v.
Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (emphasis added); United States v.
Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S. 140,
152 (1985) (holding that the Sixth Circuit’s waiver rule is within its supervisory
powers and “[t]here is no indication that Congress, in enacting § 636(b)(1)(C),
intended to require a district judge to review a magistrate’s report to which no
objections are filed”).
The Sixth Circuit clarified this rule: 	failure to object is not a waiver, but a
forfeiture. Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (“We clarify that
forfeiture, rather than waiver, is the relevant term here.”). 	This is so because
“[w]aiver is different from forfeiture.” 	United States v. Olano, 507 U.S. 725, 733
(1993); Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring)
(noting 	the 	Supreme 	Court’s 	cases 	“often 	used 	[waiver 	and 	forfeiture]
interchangeably,” but that “[t]he two are really not the same.”). 	This difference
matters because forfeited issues may, in certain circumstances, nevertheless “be
considered on appeal.” 	Berkshire, 928 F.3d at 530 (citing Harris v. Klare, 902 F.3d
630, 635–36 (6th Cir. 2018)).
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In any event, the time for filing objections to the Report and Recommendation
has passed. Petitioner neither objected, nor provided some legitimate reason why he
failed to do so. 	Further, upon the Court’s independent review of the record, there
does 	not 	appear 	to 	be 	clear 	error 	in 	the 	Magistrate 	Judge’s 	Report 	and
Recommendation. 	Therefore, the Court ADOPTS the Report and Recommendation
(ECF No. 43) and DISMISSES the action WITH PREJUDICE.
SO ORDERED.
Dated: January 27, 2026
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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