Gonzalez v. Tibbals, No. 1:2013cv00014 - Document 8 (N.D. Ohio 2014)
Court Description: Opinion and Order signed by Judge James S. Gwin on 1/13/14 adopting the Report and Recommendation of the Magistrate Judge, denying petitioner's motion for stay and abeyance and dismissing the petition with prejudice. (Related Docs. 1 , 5 , 7 ) (M,G)
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Gonzalez v. Tibbals Doc. 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ---------------------------------------------------------------: EDGAR GONZALEZ, : : Petitioner, : : v. : : TERRY A. TIBBALS, WARDEN, : : Respondent. : ---------------------------------------------------------------- CASE NO. 1:13-CV-00014 OPINION & ORDER [Resolving Doc. Nos. 1 & 5] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: On January 3, 2013, Petitioner Gonzalez filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 seeking relief for alleged constitutional violations that occurred during his jury trial and sentencing hearing in the Cuyahoga County Court of Common Pleas.1 Under Local Rule 72.2, the Court referred the petition to Magistrate Judge George J. Limbert for a Report and Recommendation. On July 22, 2013, Petitioner filed a pro se motion to stay the habeas petition in abeyance until he exhausted his state remedies.2 On November 27, 2013, Magistrate Judge Limbert recommended that this Court deny Petitioner’s pro se motion for a stay and abeyance and dismiss with prejudice Petitioner’s petition for a writ of habeas corpus.3 The Court ADOPTS the Magistrate Judge’s Report and Recommendation, DENIES Petitioner’s motion for a stay and abeyance, and DISMISSES WITH PREJUDICE Petitioner’s writ of habeas corpus. 1 Doc. 1. 2 Doc. 5. 3 Doc. 7. Dockets.Justia.com 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.4 Parties must file any objections to a Report and Recommendation within fourteen days of service.5 Failure to object within that time waives a party’s right to appeal the magistrate judge’s recommendation.6 Absent objection, a district court may adopt the Magistrate Judge’s report without review.7 However, this Court has conducted its own review and agrees with the conclusions of the Magistrate Judge. Accordingly, the Court ADOPTS in whole Magistrate Judge Limbert’s Report and Recommendation and incorporates it fully herein by reference. The Court DENIES Petitioner’s motion for a stay and abeyance, and further DISMISSES WITH PREJUDICE Petitioner’s writ of habeas corpus. Moreover, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and no basis exists upon which to issue a certificate of appealability.4 IT IS SO ORDERED. Dated: January 13, 2014 s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 4 28 U.S.C. § 636(b)(1). 5 Fed. R. Civ. P. 72(a). 6 See Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). 7 Thomas, 474 U.S. at 149. 4 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
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