Gilmore v. Clipper

Filing 13

Memorandum of Opinion and Order: This matter is before the Court upon the Report and Recommendation of Magistrate Judge James R. Knepp, II (Doc. 11 ), which recommends denial and dismissal of the Petition for Writ of Habeas Corpus (Doc. 1 ) and Motion for Summary Judgment (Doc. 2 ) pending before the Court. This Court, having reviewed the Report and Recommendation and finding no clear error, accepts the Magistrate Judge's Report and Recommendation. The Court hereby denies the Pet ition for Writ of Habeas Corpus and the Motion for Summary Judgment for the reasons stated by the Magistrate Judge in the Report and Recommendation, which is incorporated herein by reference. Furthermore, the Court certifies, pursuant to 28 U.S.C. &# 167; 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 3/12/18. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Emmanuel L. Gilmore,
Petitioner,
vs.
Kimberly Clipper, Warden,
Respondent.

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CASE NO. 1:17 CV 1487
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. 11), which recommends denial and dismissal of the Petition for
Writ of Habeas Corpus (Doc. 1) and Motion for Summary Judgment (Doc. 2) pending before the
Court. No objections have been filed. For the reasons that follow, the Report and
Recommendation is ACCEPTED.
STANDARD OF REVIEW
When objections are made to a Magistrate Judge’s Report and Recommendation, the
district court reviews the case de novo. Federal Rule of Civil Procedure 72(b)(3) provides in
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pertinent part:
The district judge must determine de novo any part of the
magistrate’s disposition that has been properly objected to. The
district judge may accept, reject, or modify the recommended
disposition; receive further evidence, or return the matter to the
magistrate judge with instructions.
As stated in the Advisory Committee Notes, “[w]hen no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” In Thomas v. Arn, 474 U.S. 140, 150 (1985), the Court held, “[i]t
does not appear that Congress intended to require district court review of a magistrate judge’s
factual or legal conclusions, under a de novo or any other standard, when neither party objects to
those findings.”
DECISION
This Court, having reviewed the Report and Recommendation and finding no clear error,
accepts the Magistrate Judge’s Report and Recommendation. The Court hereby denies the
Petition for Writ of Habeas Corpus and the Motion for Summary Judgment for the reasons stated
by the Magistrate Judge in the Report and Recommendation, which is incorporated herein by
reference. 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).
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 3/12/18
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