Townsend v. Erwin, No. 3:2006cv00563 - Document 13 (N.D. Ohio 2008)
Court Description: Memorandum of Opinion and Order: The Magistrate Judge determined that the Petition's claims were procedurally defaulted. This Court agrees as the record shows that petitioner failed to pursue a timely appeal to the Ohio Supreme Court of the state appellate courts denial of his motion for delayed appeal. Accordingly, for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is dismissed. Furthermore, the Court declines to issue a certificate of appealability.Judge Patricia A. Gaughan on 5/15/08. re 12 (LC,S)
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Townsend v. Erwin Doc. 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Anthony Townsend, Petitioner, vs. James Erwin, Warden, Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 3:06 CV 563 JUDGE PATRICIA A. GAUGHAN Memorandum of Opinion and Order This matter is before the Court upon the Report and Recommendation of Magistrate Judge Baughman (Doc. 12) which recommends dismissal of the Petition for Writ of Habeas Corpus pending before the Court. For the following reasons, the Report and Recommendation is ACCEPTED. Introduction Petitioner, Anthony Townsend, commenced this action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge issued his Report and Recommendation recommending that the Petition be dismissed. Petitioner has failed to file objections to the Report and Recommendation. 1 Dockets.Justia.com 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 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. Conclusion The Magistrate Judge determined that the Petition’s claims were procedurally defaulted. This Court agrees as the record shows that petitioner failed to pursue a timely appeal to the Ohio Supreme Court of the state appellate court’s denial of his motion for delayed appeal. Accordingly, for the reasons set forth in the Magistrate Judge’s Report and Recommendation, the Petition for Writ of Habeas Corpus is dismissed. Furthermore, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c) provides: (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 2 (emphasis added). In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court determined that [t]o obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ Id. at 483-4 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court’s decision “debatable or wrong.” Id. at 484. In instances where a claim is procedurally defaulted, a COA should only issue if “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. (emphasis supplied). For the reasons stated in the Report and Recommendation, the Court does not find that petitioner has satisfied this showing. Accordingly, the Court declines to issue a certificate of appealability. IT IS SO ORDERED. /s/ Patricia A. Gaughan PATRICIA A. GAUGHAN United States District Judge Dated: 5/15/08 3
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