Tran v. Bogan, No. 1:2016cv00637 - Document 20 (N.D. Ohio 2017)

Court Description: Memorandum of Opinion and Order: Magistrate Judge Baughman concluded that Petitioner filed his petition outside the one-year statute of limitations for filing habeas petitions set forth in 28 U.S.C. § 2244(d). He further concluded that P etitioner was not entitled to statutory or equitable tolling and that he did not meet the demanding standard for establishing a claim of actual innocence. This Court, having reviewed the Report and Recommendation and finding no clear error, accepts t he Magistrate Judge's Report and Recommendation. In accordance with that recommendation, the Court hereby denies the Petition for Writ of Habeas Corpus for the reasons stated by the Magistrate Judge in the Report and Recommendation, which is inc orporated herein by reference. Furthermore, 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 that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Patricia A. Gaughan on 9/25/17. (LC,S) re 18
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Tran v. Bogan Doc. 20 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION My Van Tran, Petitioner, Vs. Bobby Bogan, Jr., Warden, Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16 CV 637 JUDGE PATRICIA A. GAUGHAN Memorandum of Opinion and Order INTRODUCTION This matter is before the Court upon the Report and Recommendation of Magistrate Judge William H. Baughman, Jr. (Doc. 18), which recommends dismissal of the Petition for Writ of Habeas Corpus pending before the Court. Petitioner has not filed objections to the Report and Recommendation. For the reasons that follow, the Report and Recommendation is ACCEPTED. STANDARD OF REVIEW When objections are made to a Magistrate Judge’s Report and Recommendation, the district court reviews the case de novo. Federal Rule of Civil Procedure 72(b) provides in pertinent part: 1 Dockets.Justia.com The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. As stated in the Advisory Committee Notes, “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” In Thomas v. Arn, 474 U.S. 140, 150 (1985), the Court held, “It does not appear that Congress intended to require district court review of a magistrate judge’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” DECISION Magistrate Judge Baughman concluded that Petitioner filed his petition outside the oneyear statute of limitations for filing habeas petitions set forth in 28 U.S.C. § 2244(d). He further concluded that Petitioner was not entitled to statutory or equitable tolling and that he did not meet the demanding standard for establishing a claim of actual innocence. This Court, having reviewed the Report and Recommendation and finding no clear error, accepts the Magistrate Judge’s Report and Recommendation. In accordance with that recommendation, the Court hereby denies the Petition for Writ of Habeas Corpus for the reasons stated by the Magistrate Judge in the Report and Recommendation, which is incorporated herein by reference. Furthermore, 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 that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 2 IT IS SO ORDERED. /s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Court Chief Judge Dated: 9/25/17 3