Gillepsie v. Ohio State Penitentiary

Filing 18

Memorandum of Opinion and Order: For the reasons set forth herein and for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore, the Court certifies, purs uant 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). Judge Patricia A. Gaughan on 7/11/16. (LC,S) re 15

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

John Gillepsie,
Petitioner,
vs.
Ohio State Penitentiary,
Respondent.

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CASE NO. 1:14 CV 2825
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge James R. Knepp, II (Doc. 15) which recommends denial of the Petition for Writ of
Habeas Corpus pending before the Court. Petitioner filed objections to the recommendation.
For the following reasons, the Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides, “The judge must determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or modify any
proposed finding or recommendation.”
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Discussion
Petitioner is incarcerated following his guilty plea to aggravated robbery with firearm
specifications, felonious assault with a firearm specification, and receiving stolen property.
The Magistrate Judge found petitioner’s first two grounds for relief to be procedurally
defaulted given that petitioner failed to pursue them to the Ohio Supreme Court after they
were denied by the Ohio court of appeals. Petitioner asserts that the Magistrate Judge abused
his discretion in denying petitioner’s earlier Motion to Stay which would have allowed
petitioner to return to the state court to present these claims. However, the Court finds no error
in the Magistrate Judge’s October 2, 2015 Order denying the stay on the basis that the claims
would be non-congizable even if the procedural default were cured.
Although petitioner states that he objects to the Magistrate Judge’s finding that the
third ground for relief is not cognizable on habeas review, he presents no argument.
Therefore, having found no clear error, the Court accepts the Magistrate Judge’s conclusion as
to this ground as well.
Conclusion
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, the Petition for Writ of Habeas Corpus is denied. Furthermore,
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).

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IT IS SO ORDERED.

/s/ Patricia A.Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 7/11/16

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