Christopher v. Tibbals
Filing
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Order Adopting Report and Recommendation (re 9 ) of Magistrate Judge Limbert, denying Christopher's Petition and entering final judgment in favor of Respondent. The court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. Signed by Judge Solomon Oliver, Jr on 7/27/2012. (D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CARLOS CHRISTOPHER,
Petitioner,
v.
TERRY TIBBALS, Warden,
Respondent
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Case No.: 1:10 CV 2937
JUDGE SOLOMON OLIVER, JR.
ORDER
On December 29, 2010, Petitioner Carlos Christopher (“Petitioner” or “Christopher”), filed
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality
of his convictions for aggravated murder, aggravated robbery, and aggravated burglary. (ECF No.
1, at 1.) Petitioner raised three grounds for relief in his Petition, all based on violations of his due
process rights under the Fourteenth Amendment: (1) the evidence was not sufficient to establish
beyond a reasonable doubt that Petitioner was guilty of aggravated murder with a capital
specification; (2) the evidence was not sufficient to establish beyond a reasonable doubt that
Petitioner was guilty of aggravated burglary with a felony-murder specification; and (3) the evidence
was not sufficient to establish beyond a reasonable doubt that Petitioner was guilty of aggravated
robbery with a felony-murder specification. (Id. at App., ECF No. 1, at 21, 27–28, .)
This case was referred to Magistrate Judge George J. Limbert for preparation of a report and
recommendation (“R&R”). The Magistrate Judge issued his Report and Recommendation on May
10, 2012, recommending that the Petition be denied. (ECF No. 9.) Specifically, the Magistrate
Judge acknowledged that there may be procedural barriers to the court’s review of grounds two and
three of the Petition because Petitioner failed to raise them as distinct assignments of error before
the state court. The Magistrate Judge determined, however, that because they were presented to the
state court as part of another ground for relief and the state court addressed them, this court should
review grounds two and three on the merits. After delineating the evidence particular to each charge,
Magistrate Judge Limbert concluded that the evidence was sufficient to permit a factfinder to
reasonably conclude that the State had established guilt beyond a reasonable doubt as to each charge.
He further concluded that the Petition should be denied because Petitioner failed to establish that
the state court’s decision was contrary to or an unreasonable application of clearly established
Federal law or was an unreasonable determination of the facts in light of the state court proceeding.
(R & R, at 22–27, ECF No. 9.)
On May 24, 2012, Petitioner filed a Notice of Intent Not to File Objections. In this document,
Petitioner represents that he will not file objections to the Magistrate Judge’s R&R. By failing to file
objections, he has waived the right to appeal the Magistrate Judge’s recommendation. United States
v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985). Additionally,
Petitioner explained that “he will not attempt to continue the habeas procedure,” which suggests that
Petitioner further withdraws his Petition. Nonetheless, the court reviewed the Petition.
The court finds that, after de novo review of the Report and Recommendation and all other
relevant documents, the Magistrate Judge’s conclusions are fully supported by the record and
controlling case law. Accordingly, the court adopts as its own the Magistrate Judge’s Report and
Recommendation. (ECF No. 9.) Consequently, Christopher’s Petition is hereby denied, and final
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judgment is entered in favor of Respondent. The court further certifies that pursuant to 28 U.S.C.
§ 1915(a)(3), an appeal from this decision could not be taken in good faith, and there is no basis
upon which to issue a certificate of appealability.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
July 27, 2012
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