Owens v. Miller

Filing 12

Memorandum Opinion: The Court has reviewed the Magistrate Judge's report and recommendation and accepts the same. (Doc. No. 11 .) Accordingly, the Court dismisses grounds one and three of the petition, and denies the petition as to ground two. Further, the Court certifies 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 3/11/2016. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELVIN OWENS,
PETITIONER,
vs.
MICHELLE MILLER,
RESPONDENT.

)
)
)
)
)
)
)
)
)

CASE NO. 1:14-cv-421
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is the report and recommendation of the Magistrate Judge with respect to
the above-entitled petition for writ of habeas corpus. The Magistrate Judge recommends dismissal
of ground one (failure to give jury instruction on self-defense) and ground three (conviction
against manifest weight of evidence) because both are non-cognizable state law claims. The
Magistrate Judge further recommends denial of the petition with respect to ground two (ineffective
assistance of trial counsel) because the state courts did not unreasonably apply clearly established
federal law. 28 U.S.C. § 2254(d)(1).
Under 28 U.S.C. § 636(b)(1)(C):
Within fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made. [. . .]

The R&R was filed on February 1, 2016 (Doc. No. 11), and was sent to petitioner that same
day by regular mail. As of the date of this order, no objections have been filed, no extension has
been requested, and no mail has been returned as undeliverable.

The failure to 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. 1984), aff’d, 474 U.S. 140 (1985), reh’g denied, 474
U.S. 1111 (1986); see United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The Court has reviewed the Magistrate Judge’s report and recommendation and accepts the
same. Accordingly, the Court dismisses grounds one and three of the petition, and denies the
petition as to ground two. Further, the Court certifies 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. §§ 1915(a)(3), 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

Dated: March 11, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

2