Turner v. Brunsman, No. 1:2009cv02770 - Document 20 (N.D. Ohio 2011)
Court Description: Opinion and Order adopting the Report and Recommendation of the Magistrate Judge signed by Judge James S. Gwin on 8/13/11. The petition for writ of habeas corpus is denied. (Related Docs. 1 , 11 , 12 , 13 , 14 , 15 , 19 ) (M,G)
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Turner v. Brunsman Doc. 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------: DONALD TURNER, : : Petitioner, : : v. : : TIMOTHY BRUNSMAN, Warden, : : : Respondent. : : ------------------------------------------------------- CASE NO. 1:09-CV-2770 ORDER JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Petitioner Donald Turner seeks a writ of habeas corpus under 28 U.S.C. § 2254. [Doc. 1.] On March 30, 2011, Magistrate Judge George Limbert filed a Report and Recommendation recommending that this Court dismiss Turner’s petition in its entirety, with prejudice. [Doc. 11 at 21.] For the reasons set forth below, the Court ADOPTS Magistrate Judge Limbert’s Report and Recommendation. The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a Report and Recommendation to which the parties have made an objection. 28 U.S.C. § 636(b)(1)(C). Parties must file any objections to a Report and Recommendation within fourteen days of service. Id. Failure to object within this time waives a party’s right to appeal the magistrate judge’s recommendation. Fed. R. Civ. P. 72(a); see also Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Absent objection, a district court may adopt the Magistrate’s report without review. See Thomas, 474 U.S. at 149. Petitioner Turner failed to file a timely objection. On May 4, 2011 this Court adopted the unopposed Report and Recommendation in whole, [Doc. 12], and issued judgment denying Turner’s -1- Dockets.Justia.com Case No. 1:09-CV-2770 Gwin, J. petition for writ of habeas corpus. [Doc. 13.] On May 7, 2011, Petitioner Turner moved for reconsideration, claiming that he never received the Report and Recommendation and was therefore unable to file a timely objection. [Doc. 14.] Though the Petitioner’s claims did not support a motion to reconsider, the Court construed the request for reconsideration as a motion for extension of time, and allowed Petitioner Turner until June 30, 2011 to file an objection. [Doc. 19.] Petitioner Turner did not file any objection during the extension period and has not filed any since. Accordingly, the Court ADOPTS in whole Magistrate Judge Limbert’s Report and Recommendation. The Petitioner’s contemporaneous appeal to the Sixth Circuit precludes any further consideration of his petition by this Court. The Petitioner filed a Notice of Appeal to the Sixth Circuit docketed on May 26, 2011. [Doc. 15.] Filing a notice of appeal divests a district court of jurisdiction until the Court of Appeals remands the case. See United States v. Garcia-Robles, 562 F.3d 763, 767 (6th Cir. 2009); Dunham v. United States, 486 F.3d 931, 935 (6th Cir. 2007). The Sixth Circuit held the appeal in abeyance to allow this Court to rule on any pending objections, but returned the appeal to its active docket when the objection period expired. Turner v. Brunsman, No. 11-3623 (6th Cir. July 20, 2011). This action is therefore terminated under Federal Rule of Civil Procedure 58. IT IS SO ORDERED. s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE Dated: August 13, 2011 -2-
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