Amell v. Smith, No. 5:2010cv00191 - Document 8 (N.D. Ohio 2010)
Court Description: Opinion and Order signed by Judge James S. Gwin on 12/17/10 adopting the Report and Recommendation of the Magistrate Judge. The Court denies Petitioner Amell's petition for a writ of habeas corpus as set forth in this entry. 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 , 6 ) (M,G)
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Amell v. Smith Doc. 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------: ROBERT AMELL, : : Plaintiff, : : vs. : : WARDEN KEITH SMITH, : : Defendant. : : ------------------------------------------------------- CASE NO. 5:10-CV-00191 OPINION & ORDER [Resolving Doc. No. 1] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: On January 27, 2010, Petitioner Robert Amell filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to Magistrate Judge James Knepp, II, pursuant to Local Rule 72.2. On November 23, 2010, Magistrate Judge Knepp issued a Report and Recommendation recommending that the Court dismiss the petition due to procedural default and a failure on the merits. [Doc. 6.] 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 -1- Dockets.Justia.com Case No. 5:10-CV-00191 Gwin, J. may adopt the magistrate judge’s report without review. See Thomas, 474 U.S. at 149. In this case, Petitioner Amell has indicated that he will not be objecting to the Magistrate Judge’s recommendation and will not pursue his issues further. [Doc. 7.] Moreover, having conducted its own review of the record and the parties’ briefs, the Court agrees with the recommendation of Magistrate Judge Knepp that the petition should be dismissed. The Petitioner procedurally defaulted grounds two, three, four, six and seven of his petition; ground one asserts a violation of state law not cognizable in this action; and ground five fails on the merits because the state appeals court did not unreasonably apply federal law in determining there was no double jeopardy violation. [Doc. 6.] Accordingly, the Court ADOPTS in whole Magistrate Judge Knepp’s Report and Recommendation and DENIES Petitioner Amell’s petition for a writ of habeas corpus. 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: December 17, 2010 -2-
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