Wilson v. Warden Ross Correctional Institution

Filing 15

Memorandum Opinion and Order: Petitioner's motion for additional time in which to file objections is denied, and his motion for the appointment of counsel is denied as moot. (Doc. No. 14.) Moreover, this Court has reviewed the thorough R &R, and finds no reason to disagree with the Magistrate Judge's findings and conclusions that the asserted grounds for relief be denied and the petition dismissed. Accordingly, the Court hereby adopts the Magistrate Judge's R&R (Doc. No. [1 3]), and the underlying petition for writ of habeas corpus is denied. Further, the Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. Judge Sara Lioi on 12/30/2013. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ERIC R. WILSON,
PETITIONER,
vs.

WARDEN, ROSS CORRECTIONAL
INSTITUTION,
DEFENDANT.

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CASE NO. 1:12CV1554
JUDGE SARA LIOI

ORDER

This matter is before the Court on the motion of pro se petitioner Eric R.
Wilson for an extension of time and for the appointment of counsel. (Doc. No. 14.) On
July 10, 2013, Magistrate Judge Greg White issued a Report and Recommendation
(R&R), in which he recommended that the Court deny petitioner’s application for habeas
corpus relief. (Doc. No. 13.) The R&R specifically provided that any objections “must be
filed with the Clerk of Courts within fourteen (14) days after the party objecting has been
served with a copy . . . Failure to file objections within the specified time may waive the
right to appeal . . . .” (Doc. No. 13 at 1403.) Petitioner does not suggest that he did not
receive a copy of the R&R, or that he was unaware of the deadline for filing objections.
Petitioner did not file timely objections to the R&R. Rather, on September
20, 2013, more than two months later, petitioner moved the Court to appoint counsel, and
to afford appointed counsel time “to review all the documentation, confer with the
[p]etitioner, and to proffer any Motions, Applications to the Court . . . .”

(Doc. No. 14-1 at 1406.) In the alternative, petitioner sought additional time, presumably
to file pro se objections to the R&R.
In support of his motion, petitioner states that he has received limited
access to the prison’s law library, and that the inmate assisting him with his habeas
petition was transferred to another facility. He also suggests that, since May 1, 2013, he
has been detained in segregation, pending a non-disciplinary transfer. He complains that
the process by which he can obtain legal documents in segregation is “severely time
consuming.” (Id. at 1407.)
The failure to timely file written objections to a Magistrate Judge’s report
and recommendation constitutes a waiver of a de novo determination by the district court
of an issue covered in the report. Thomas v. Arn, 728 F.2d 813 (6th Cir.), aff’d, 474 U.S.
140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Petitioner has failed to demonstrate
excusable neglect for failing to file timely objections or a timely request for additional
time in which to file objections.1 While petitioner notes he has been temporarily placed in
segregation, he concedes that he is still able to obtain legal documents in segregation.
Likewise, while he complains that from “December of 2012 to late April of 2013” the
prison law library hours were curtailed, he does not explain how this inconvenience
prevented him from filing objections to an R&R that was not filed until July 2013. (Doc.
No. 14-1 at 1406.)

1

The Court observes that petitioner is quite capable of seeking extensions. On November 5, 2012,
petitioner filed for and received a 60-day extension of the time in which to file a traverse. (Doc. No. 11.)

2

For all of these reasons, petitioner’s motion for additional time in which to
file objections is DENIED, and his motion for the appointment of counsel is DENIED as
moot.2 Moreover, this Court has reviewed the thorough R&R, and finds no reason to
disagree with the Magistrate Judge’s findings and conclusions that the asserted grounds
for relief be denied and the petition dismissed.
Accordingly, the Court hereby ADOPTS the Magistrate Judge’s R&R
(Doc. No. 13), and the underlying petition for writ of habeas corpus is DENIED. Further,
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision
could not be taken in good faith, and that there is no basis upon which to issue a
certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
Dated: December 30, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

2

Even if the Court was inclined to grant petitioner additional time to file objections, his motion for
appointed counsel would be denied. There is no constitutional right to counsel in habeas proceedings.
Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (citing McClesky v. Zant, 499 U.S. 467, 495, 111 S.
Ct. 1454, 113 L. Ed. 2d 517 (1987)). The decision to appoint counsel for a federal habeas petitioner is
within the discretion of the court, and is only required where the interests of justice or due process so
require. Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986). In the present case, petitioner has filed a
petition for a writ of habeas corpus, in which he raises twelve grounds for relief, including one claim that
he was denied the right to represent himself at trial. Petitioner, therefore, has the means and ability to
present his claims to this Court. Thus, the interests of justice would not require appointment of counsel.
3