Peterson v. Smith

Filing 36

Memorandum Opinion and Order Adopting Report and Recommendation re 35 . Accordingly, for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c).Judge Patricia A. Gaughan(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Damien Peterson,
Petitioner,
vs.
Keith Smith, Warden,
Respondent.

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CASE NO. 1:09 CV 1012
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Armstrong (Doc. 35) which recommends dismissal of the Petition for Writ of Habeas
Corpus pending before the Court. For the following reasons, the Report and Recommendation is
ACCEPTED.
Introduction
Petitioner, Damien Peterson, commenced this action with the filing of a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge issued her Report and
Recommendation recommending that the Petition be dismissed. Petitioner has not filed
objections to the Report and Recommendation.
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Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts
provides, “The judge must determine de novo any proposed finding or recommendation to which
objection is made. The judge may accept, reject, or modify any proposed finding or
recommendation.” When no objections have been filed this Court need only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation. See
Advisory Committee Notes 1983 Addition to Federal Rule of Civil Procedure 72.
Conclusion
The Magistrate Judge determined that the petition was procedurally defaulted with
respect to his abuse of discretion ground, and that petitioner’s remaining grounds were without
merit. Petitioner has not objected to the findings. This Court agrees with the reasoning and
conclusions of the Magistrate Judge and, having found no clear error, completely adopts her
factual and legal conclusions as its own and incorporates them herein by reference. Accordingly,
for the reasons set forth in the Magistrate Judge’s Report and Recommendation, the Petition for
Writ of Habeas Corpus is denied. Furthermore, the Court declines to issue a certificate of
appealability. 28 U.S.C. § 2253(c).

IT IS SO ORDERED.

Date:

5/06/11

/s/Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge

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