Stevens v. Schweitzer, No. 3:2017cv01245 - Document 21 (N.D. Ohio 2019)

Court Description: Memorandum of Opinion and Order For the reasons set forth herein, the Report and Recommendation of the Magistrate Judge is hereby adopted. Kevin L. Stevens' Petition for a Writ of Habeas Corpus will be dismissed. 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. Judge Benita Y. Pearson on 11/22/2019. (S,Ke)

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Stevens v. Schweitzer Doc. 21 PEARSON, J. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION KEVIN L. STEVENS (#A711190), Petitioner, v. NEIL TURNER,1 Warden, Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. 3:17CV1245 JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER Pro Se Petitioner Kevin L. Stevens filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) alleging four (4) grounds for relief which challenge the constitutional sufficiency of his convictions in Allen County, Ohio Court of Common Pleas Case No. CR 2013 0473. Petitioner was sentenced to eight (8) years in prison on Count One (rape), 11 years in prison on Count Two (rape), five (5) years in prison on Count Three (aggravated burglary), and six (6) years in prison on the repeat-violent-offender specification, and the trial court ordered that Stevens serve the terms consecutively for an aggregate sentence of 30 years. The case was referred to Magistrate Judge David A. Ruiz for preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). On October 29, 2019, 1 According to the Ohio Department of Rehabilitation & Correction website (https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A711190) (last visited November 22, 2019)), Petitioner is now confined at the North Central Correctional Institution. The Warden of that institution, Neil Turner, has been substituted for Thomas Schweitzer, Warden. Dockets.Justia.com (3:17CV1245) the magistrate judge issued a Report and Recommendation (ECF No. 20). In his Report, the magistrate judge recommends that the Court deny the habeas petition because: (1) Ground One (ineffective assistance of trial counsel) fails on the merits (ECF No. 20 at PageID #: 1757-64); (2) Ground Two (prosecutorial misconduct) fails on the merits, and the conduct to which the defense did not object at trial is procedurally defaulted and Petitioner has failed to present meritorious cause to excuse his default (ECF No. 20 at PageID #: 1764-76); (3) Ground Three (sufficiency of the evidence) fails on the merits (ECF No. 20 at PageID #: 1777-91); and, Ground Four (abuse of discretion) is procedurally defaulted and Petitioner has failed to present any cause for his failure to comply with Ohio App. R. 16(A)(7) (ECF No. 20 at PageID #: 1791-93). Fed. R. Civ. P. 72(b)(2) provides that objections to a report and recommendation must be filed within 14 days after service. Objections to the Report were, therefore, due on November 15, 2019.2 Neither party has timely filed objections. Therefore, the Court must assume that the parties are satisfied with the magistrate judge’s recommendations. Any further review by this Court would be a duplicative and inefficient use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff’d, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Accordingly, the Report and Recommendation of the magistrate judge is hereby adopted. Kevin L. Stevens’ Petition for a Writ of Habeas Corpus will be dismissed. 2 Under Fed. R. Civ. P. 6(d), three (3) days must be added to the 14-day time period because Petitioner was served a copy of the Report by mail. See Thompson v. Chandler, 36 Fed.Appx. 783, 784 (6th Cir. 2002). 2 (3:17CV1245) 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). The Clerk is directed to issue a copy of this Memorandum of Opinion and Order by regular mail to Kevin L. Stevens, #A711190, North Central Correctional Institution, P.O. Box 1812, 670 Marion Williamsport Road East, Marion, Ohio 43301. IT IS SO ORDERED. November 22, 2019 Date /s/ Benita Y. Pearson Benita Y. Pearson United States District Judge 3

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