McKinney v. Eberlin, No. 1:2006cv03019 - Document 13 (N.D. Ohio 2008)
Court Description: Memorandum of Opinion and Order Adopting Report and Recommendation re 12 Report and Recommendation, Terminate Referral and grants Respondent's motion to dismiss (ECF No. 7) and Dismisses with Prejudice the Petition(ECF No.1). Judge Dan Aaron Polster on 6/5/08. (E,P) Modified text on 6/6/2008 (E,P).
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McKinney v. Eberlin Doc. 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION TONY RANDALL MCKINNEY, Petitioner, vs. MICHELE EBERLIN, WARDEN, Respondent. ) ) ) ) ) ) ) ) ) Case No. 1:06 CV 3019 Judge Dan Aaron Polster MEMORANDUM OF OPINION AND ORDER On April 13, 2001, Petitioner Tony Randall McKinney, who pled guilty in state court to one count of rape, was sentenced to a prison term of seven years and determined to be a sexual predator. On December 19, 2006, he filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By A Person In State Custody presenting one ground for relief: Trial court lacked jurisdiction to accept a guilty plea to a void indictment pursuant to speedy trial limitations unequivocally elapsing. (“Petition”) (ECF No. 1). Respondent filed a Motion to Dismiss, arguing that this claim, filed nearly four years after the one-year statute of limitations contained in 28 U.S.C. § 2244(d) expired, is time-barred (ECF No. 7). McKinney thereafter sought to expand the record and to receive an evidentiary hearing; however, he never directly responded to Respondent’s Motion to Dismiss. On May 15, 2008, Magistrate Judge Williams H. Baughman, to whom the Petition was referred for preparation of a report and recommended decision, issued a Report & Dockets.Justia.com Recommendation concluding that the Petition was time-barred and recommending that the Court grant the Respondent’s Motion to Dismiss and dismiss the Petition (“R & R”) (ECF No. 12). Under the relevant statute: Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C) (1988) (emphasis added). It is now June 5, 2008. Three weeks have elapsed since the R & R was issued, and McKinney has filed neither an objection nor a request for an extension of time to file an objection. The failure to timely file written objections to a Magistrate Judge’s report and recommendation constitutes a waiver of a de novo determination by the district court of an issue covered in the report. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff’d, 474 U.S. 140 (1985); see United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The Court has reviewed the Magistrate Judge’s comprehensive, well-written R & R and agrees with the Magistrate Judge’s conclusion. Accordingly, the Court hereby ADOPTS the R & R (ECF No. 12), GRANTS Respondent’s Motion to Dismiss (ECF No. 7), and DISMISSES WITH PREJUDICE the Petition (ECF No. 1). IT IS SO ORDERED. /s/ Dan Aaron Polster June 5, 2008 Dan Aaron Polster United States District Judge -2-
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