Shabazz v. Welch

Filing 14

Memorandum Opinion and Order: Having reviewed the Report and Recommendation, the Court finds no clear error and agrees with the determinations of the Magistrate Judge. Accordingly, the Motion to Dismiss is denied. This matter is returned to the Magistrate Judge for further proceedings on the Petition. Judge Patricia A. Gaughan on 5/2/11. (LC,S) re 13

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Jamil Abdul Shabazz,
Petitioner,
vs.
Robert Welch, Warden,
Respondent.

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CASE NO. 1:10 CV 1598
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

This matter is before the Court upon the Report and Recommendation of Magistrate
Judge McHargh (Doc. 13) which recommends denial of the Motion to Dismiss pending before
the Court. For the following reasons, the Report and Recommendation is ACCEPTED.
Petitioner, Jamil Abdul Shabazz, commenced this action with the filing of a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated following his
2007 conviction for murder. Respondent filed a Motion to Dismiss the Petition, arguing that two
of petitioner’s four grounds for relief have not been exhausted. The Magistrate Judge issued his
Report and Recommendation recommending that the motion be denied, and that petitioner

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should be given an opportunity to file a Traverse on the merits.1 No objections have been filed.
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.
Having reviewed the Report and Recommendation, the Court finds no clear error and
agrees with the determinations of the Magistrate Judge. Accordingly, the Motion to Dismiss is
denied. This matter is returned to the Magistrate Judge for further proceedings on the Petition.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/2/11

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The Magistrate Judge also denied petitioner’s requests for discovery. 28 U.S.C. §
636(b)(1)(a) authorizes a district judge to designate a magistrate judge to “hear
and determine any pretrial matter” with the exception of matters designated as
dispositive. Thus, while a magistrate judge may only file a recommendation on
the ultimate disposition of a habeas corpus petition, he has authority to rule on
pretrial discovery matters.

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