Clay v. Miller, No. 5:2016cv00525 - Document 9 (N.D. Ohio 2016)
Court Description: Memorandum of Opinion and Order: For the reasons set forth in the Magistrate Judge's Report and Recommendation, which is incorporated herein, the petitioner's Motion for Summary Judgment is denied Judge Patricia A. Gaughan on 6/21/16. (LC,S) re 8
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Clay v. Miller Doc. 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Larrance Major Clay, Petitioner, vs. Michele Miller, Warden Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 5:16 CV 525 JUDGE PATRICIA A. GAUGHAN Memorandum of Opinion and Order Introduction This matter is before the Court upon the Report and Recommendation of Magistrate Judge Kenneth Mchargh (Doc. 8) which recommends denial of petitioner’s Motion for Summary Judgment filed in this matter in which a Petition for Writ of Habeas Corpus is pending. Petitioner did not file objections to the recommendation. For the following reasons, the Report and Recommendation is ACCEPTED. Standard of Review Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides, “The judge must determine de novo any proposed finding or 1 Dockets.Justia.com recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation.” When no objections have been filed this Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Advisory Committee Notes 1983 Addition to Federal Rule of Civil Procedure 72. Discussion Petitioner filed a Motion for Summary Judgment (Doc. 7) although respondent’s Return of Writ is not yet due. As recognized by the Magistrate Judge, petitioner essentially seeks default judgment. But, respondent is not in default and default judgments are not available in habeas corpus proceedings. Having no objections, the Court has reviewed the Report and Recommendation and found no clear error. The Court agrees with the findings of the Magistrate Judge and accepts the recommendation. Conclusion For the reasons set forth in the Magistrate Judge’s Report and Recommendation, which is incorporated herein, the petitioner’s Motion for Summary Judgment is denied. IT IS SO ORDERED. /s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Judge Dated: 6/21/16 2
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