Bross v. Napel

Filing 12

ORDER Adopting 11 Report and Recommendation Granting 8 Motion for Summary Judgment filed by Robert Napel. Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RICKY BROSS,
Case No. 11-cv-12942
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
ROBERT NAPEL,
Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION (docket no. 11), AND
GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (docket no. 8)
Plaintiff Ricky Bross, currently confined at the Marquette Branch Prison in Marquette,
Michigan, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Mr.
Bross challenges his guilty plea as involuntary, claims ineffective assistance of counsel,
and pleads actual innocence arising from his conviction for armed robbery. Defendant
Robert Napel moved for summary judgment on January 12, 2012. ECF no. 8. The motion
was referred to a magistrate judge.

The magistrate judge issued a Report and

Recommendation ("Report") on August 29, 2012, suggesting that the Court conclude Mr.
Bross's petition is barred by the statute of limitations found in 28 U.S.C. 2244(d), and that
it should decline to issue a certificate of appealability. Neither Mr. Bross nor Mr. Napel filed
any objections to the Report.
Civil Rule 72(b) governs review of a magistrate judge's report and recommendation.
De novo review of the magistrate judge’s findings is only required if the parties “serve and
file specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2). Nevertheless, because a district judge always retains jurisdiction over a motion
after referring it to a magistrate judge, he is entitled to review the magistrate judge's
findings of fact and conclusions of law on his own initiative. See Thomas v. Arn, 474 U.S.

140, 154 (1985) (clarifying that while a district court judge need not review a report and
recommendation “de novo if no objections are filed, it does not preclude further review by
the district judge, sua sponte or at the request of a party, under a de novo or any other
standard”).
Because neither the plaintiff nor defendant filed objections, de novo review of the
Report's conclusions is not required. Having reviewed the Report's analysis, in light of the
record, the Court finds that its conclusions are factually based and legally sound.
Accordingly, it will adopt the Report's findings, grant the motion for summary judgment, and
dismiss this case.
WHEREFORE, it is hereby ORDERED that the Report (docket no. 11) is ADOPTED.
IT IS FURTHER ORDERED that the Defendant's motion for summary judgment
(docket no. 8) is GRANTED, and that the Petitioner's application for a writ of habeas corpus
is DENIED.
IT IS FURTHER ORDERED that the Court DECLINES to issue a certificate of
appealability on any issue.
SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: September 27, 2012
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on September 27, 2012, by electronic and/or ordinary mail.
Carol Cohron
Case Manager

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