Peacock v. Bracy

Filing 11

Memorandum of Opinion and Order For the reasons set forth herein, the Report and Recommendation of the Magistrate Judge (ECF No. 10 ) is hereby adopted. Desmond Peacock's Petition for a Writ of Habeas Corpus will be dismissed. The Court certifies 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 Benita Y. Pearson on 10/2/2019. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DESMOND PEACOCK,
Plaintiff,
v.
WARDEN CHARMAINE BRACY,
Defendant.

)
)
)
)
)
)
)
)
)

CASE NO. 1:17-CV-583

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

Petitioner Desmond Peacock filed a Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (ECF No. 1) alleging two grounds for relief.1 Each ground for relief challenges or
purports to challenge the constitutionality of his conviction in the Cuyahoga County Court of
Common Pleas. Case No. CR-14-588585-A; Id. at PageID #: 4-5. A Cuyahoga County Grand Jury
indicted Petitioner on one count of felonious assault, with two firearm specifications and forfeiture
specifications; one count of aggravated robbery, with two firearm specifications and forfeiture
specifications; one count of kidnapping, with two firearm specifications and forfeiture specifications; and
one count of theft, with forfeiture specifications. ECF No. 5-1 at PageID #: 38-42. A jury convicted
Peacock on all counts in the indictment. Id. at PageID #: 45. The Ohio appeals court affirmed his

1

Petitioner is still serving his sentence at the Trumbull Correctional Institution. Offender
Details, Ohio Department of Rehabilitiation & Correction, (Oct. 2, 2019),
https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A663507. He is expected to
be released in October 2021. Id.

(1:17CV583)
sentence, but vacated his three-year gun specification under the felonious assault count. Id. at PageID
#: 100. The Supreme Court of Ohio declined to review Peacock’s appeal. Id. at PageID #: 154.
The case was referred to Magistrate Judge Kathleen A. Burke for preparation of a report and
recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). On August 21, 2019, the
magistrate judge issued a Report and Recommendation (ECF No. 10). In her report, Magistrate
Judge Burke recommends dismissing the first ground as unexhausted in the state courts, or in the
alternative, dismissing it as not cognizable on federal habeas review or denying the first ground as being
meritless. ECF No. 10 at PageID #: 874. On Petitioner’s second ground for relief, the magistrate
judge recommends dismissing his claim for “manifest weight of the evidence” as not cognizable on
federal habeas review and denying his “sufficiency of the evidence” claim. Id. at PageID #: 874, 880.
Fed. R. Civ. P. 72(b)(2) provides that objections to a report and recommendation must be
filed within 14 days after service. Objections to the Report were due, therefore, on September 4,
2019.2 To date, neither party has filed any such objections. Any further review would be
duplicative and an inefficient use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813
(6th Cir. 1984), aff’d, 474 U.S. 140 (1985); Howard v. Sec’y of Health and Human Servs., 932
F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Accordingly, the Report and Recommendation of the magistrate judge is hereby adopted.
Desmond Peacock’s Petition for a Writ of Habeas Corpus will be dismissed.
2

Under Fed. R. Civ. P. 6(d), three days must be added to the fourteen-day time
period because Petitioner was served a copy of the Report by mail. See Thompson v.
Chandler, 36 F. App'x 783, 784 (6th Cir. 2002).
2

(1:17CV583)
The Court certifies 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.

October 2, 2019
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

3