Dixon v. Smith, No. 5:2008cv02883 - Document 15 (N.D. Ohio 2010)
Court Description: Opinion and Order signed by Judge James S. Gwin on 8/20/10. The Court adopts the Report and Recommendation of the Magistrate Judge. The petition for writ of habeas corpus is denied. The Court certifies 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. (Related Docs. 1 , 14 ) (M,G)
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ox.iDim ht S v . co 1 D 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------: DONNIS DIXON, : : Petitioner, : : vs. : : KEITH SMITH, : Warden, : : Respondent. : ------------------------------------------------------- CASE NO. 5:08-CV-2883 OPINION & ORDER [Resolving Doc. Nos. 1 & 14] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Donnis Dixon petitions for a writ of habeas corpus under 28 U.S.C § 2254. [Doc 1.] Petitioner Dixon seeks relief from the nineteen-year sentence that an Ohio state court imposed following his convictions for felony assault, possessing weapons while under disability, improperly handling firearms in a vehicle, and assault. [Id.] Petitioner Dixon raises three grounds for relief: (1) the evidence at trial was insufficient to secure Petitioner’s felony assault and assault convictions; (2) ineffective assistance of appellate counsel because appellate counsel did not raise an assignment of error that trial counsel was constitutionally ineffective; and (3) ineffective assistance of appellate counsel because appellate counsel refused to turn over the Petitioner’s transcripts from his direct appeal. [Id. at 7-9.] This matter was automatically referred to Magistrate Judge James McHargh pursuant to Local Rule 72.2. On July 1, 2010, Magistrate Judge McHargh issued a Report and Recommendation that recommended this Court deny Dixon’s petition. [Doc. 14.] -1- mc . a i t suJ . s t ekco o D Case No. 5:08-CV-2883 Gwin, J. 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.; Fed. R. Civ. P. 72(b)(2). Failure to object within this time waives a party’s right to appeal the district court’s judgment. 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 judge’s report without review. See Thomas, 474 U.S. at 149. In this case, neither party has objected to the Magistrate Judge’s recommendation. Moreover, having conducted its own review of the record and the parties’ briefs in this case, the Court agrees with the conclusions of Magistrate Judge McHargh. Accordingly, the Court ADOPTS in whole Magistrate Judge McHargh’s Report and Recommendation and incorporates it fully herein by reference, and DENIES Dixon’s habeas petition. Further, 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. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). IT IS SO ORDERED. s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE Dated: August 20, 2010 -2-
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