Smith v. Lazaroff

Filing 15

Memorandum Opinion: The Court has reviewed the Magistrate Judge's report and recommendation, which concludes that petitioner's two grounds are both procedurally defaulted, and accepts the same. Accordingly, the petition for writ of habeas corpus is denied and the case dismissed. 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. Sections 1915(a)(3), 2253(c); Fed. R. App. P. 22(b). (Related Doc # 14 ). Judge Sara Lioi on 1/13/2016. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TAUNEE SMITH,
PETITIONER,
vs.
ALAN LAZAROFF,
RESPONDENT.

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CASE NO. 1:14-cv-1702
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is the report and recommendation of the Magistrate Judge in the
above-entitled action. (Doc. No. 14 [“R&R”].) Under the relevant statute:
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. [. . .]

28 U.S.C. § 636(b)(1)(C).
The R&R was filed on December 23, 2015 and mailed to petitioner at his address of
record on that same day. Under Fed. R. Civ. P. 6(d), an additional three days are added when
computing service. Therefore, objections were due on January 9, 2016, which fell on a Saturday.
Under Rule 6(a)(1)(C), that extended the filing deadline to January 11, 2016.
No objections were filed on or before that deadline, nor was any extension sought.
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, which
concludes that petitioner’s two grounds are both procedurally defaulted, and accepts the same.
Accordingly, the petition for writ of habeas corpus is denied and the case
dismissed. 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: January 13, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE