Roberts v. Warden Chillicothe Correctional Institution, No. 2:2012cv00371 - Document 39 (S.D. Ohio 2013)
Court Description: OPINION and ORDER - Petitioner's objections are OVERRULED; the Report and Recommendation 34 is adopted and affirmed; Respondent's Motion to Dismiss 15 is GRANTED; this action is hereby DISMISSED. Signed by Judge Michael H. Watson on 2/6/13. (jk1)
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- ------~--·---------, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Michael L. Roberts, Petitioner, Case No. 2: 12-cv-371 Judge Watson Magistrate Judge King v. Norm Robinson, Warden, Respondent. OPINION AND ORDER On December 27, 2012, the Magistrate Judge recommended Respondent's motion to dismiss, ECF No. 15, be granted, reasoning that Petitioner's claim three is unexhausted and time-barred and that Petitioner's claims one, two, and four raise only state law claims that are not cognizable in federal habeas corpus. Report and Recommendation, ECF No. 34. This matter is now before the Court on Petitioner's objections to that recommendation, ECF No. 38, which the Court will consider de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). In his objections, Petitioner again argues that he fairly presented his claims to the state courts by filing state habeas corpus actions, and that the statute of limitations was thereby tolled. Petitioner also argues that the statute of limitations relating to his challenge to his guilty plea (claim three) did not begin to run until the trial court imposed a sentence in connection with Petitioner's violation of the terms of his community control. Alternatively, Petitioner contends that the statute of limitations did not begin to run until he was returned to prison. Petitioner also argues that his initial judgment was a "legal nullity" that can be attacked at any time. He complains that it would be futile to require him to pursue a delayed direct appeal. Moreover, Petitioner argues that the Magistrate Judge failed to consider his pro se status. He contends that, because he acted with diligence and in good faith and is actually innocent, this Court should consider the merits of his claims. Finallly, Petitioner objects to the Magistrate Judge's conclusion that, aside from claim three, his claims present issues of state law that fail to provide a basis for habeas corpus relief. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons already detailed in the Magistrate Judge's Report and Recommendation, Petitioner's objections, ECF No. 38, are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. Respondent's motion to dismiss, ECF No. 15, is GRANTED. This action is hereby DISMISSED. The Clerk is DIRECTED to enter FINAL JUDGMENT. ~ldJ4 iCHAELH:ATsoN UNITED STATES DISTRICT JUDGE Case No. 2:12-cv-371 Page 2 of 2
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