Smith v. Lazaroff

Filing 19

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 2/29/2016. (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 originally 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.
On January 13, 2016, having received no objections nor any request for an extension, the
Court issued its Memorandum Opinion and Judgment Entry denying the petition for writ of habeas
corpus and dismissing the action.

On January 19, 2016, petitioner filed a motion for a 40-day extension of time to file his
objections, asserting that he had not received the R&R until January 1, 2016 and further claiming
that, due to an incident at the institution where he is housed, the law library was not operating at
normal capacity, making it impossible for him to timely respond. The Court accepted petitioner’s
assertions, vacated the January 13, 2016 ruling, directed the Clerk to reopen the case, and granted
petitioner until February 19, 2016 to file any objections.
No objections have been filed as of the date of this order, which is well beyond the
February 19th deadline. 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: February 29, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE