Thigpen v. Sheldon

Filing 24

Memorandum of Opinion and Order For the reasons set forth herein, the Report and Recommendation of the Magistrate Judge, ECF No. 21 , is hereby adopted. Lorenzo Thigpen's Petition for a Writ of Habeas Corpus will be dismissed. The C ourt 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). Judge Benita Y. Pearson on 4/30/2020. Related document(s) 22 , 23 . (JLG)

Case: 1:17-cv-02196-BYP Doc #: 24 Filed: 04/30/20 1 of 3. PageID #: 2159

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

LORENZO THIGPEN,
Petitioner,
v.
EDWARD SHELDON, Warden,
Respondent.

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CASE NO. 1:17CV02196
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER

Pro Se Petitioner Lorenzo Thigpen, currently an inmate at the Mansfield Correctional
Institution, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No.
1), alleging three (3) grounds challenging the constitutional sufficiency of his convictions in
Cuyahoga County, Ohio Court of Common Pleas Case No. CR-12-563007. The case was
referred to Magistrate Judge David A. Ruiz for a Report and Recommendation pursuant to 28
U.S.C. § 636 and Local Rule 72.2(b)(2). On November 6, 2019, the magistrate judge issued a
Report and Recommendation (ECF No. 21). In his Report, the magistrate judge finds that all of
Petitioner’s Grounds for Relief are procedurally defaulted and he fails to establish sufficient
cause or prejudice to overcome the procedural default. He also finds that Petitioner has not
identified any new, reliable evidence to establish actual innocence in order to overcome the
procedural default. The magistrate judge, therefore, recommends that the Court dismiss the
petition. Petitioner was specifically warned in the Report that pursuant to Thomas v. Arn, 474
U.S. 140 (1985), reh’g denied, 474 U.S. 1111 (1986), and United States v. Walters, 638 F.2d 947

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(6th Cir. 1981), failure to file timely objections to the Report may constitute a waiver of his
arguments on appeal. See ECF No. 21 at PageID #: 2143.
Petitioner requested and was granted a 30-day extension of time in which to file
Objections. See ECF No. 22 and Non-document Order dated November 25, 2019. Any
objections to the Report were to be filed on or before December 26, 2019 – 30 days after the last
day he had to file his objections to the Report. Pursuant to the mailbox rule formulated by the
United States Supreme Court, see Houston v. Lack, 487 U.S. 266, 269-72, 276 (1988), which has
been extended to the filing of various other documents, including objections to a magistrate
judge’s report, Petitioner filed his Objections (ECF No. 23) at the moment the document was
delivered to prison officials for forwarding to the Clerk of Court on December 30, 2019. See
ECF No. 23 at PageID # 2157. On January 2, 2020, the Court received and thereafter docketed
Petitioner’s Objections. Despite being granted an extension of time, Petitioner still failed to
timely file his objections.
The Court finds that the “interest of justice” exception to the Walters rule, discussed in
Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir. 1987), is not applicable to this case.
Petitioner has not shown that his case presents any exceptional circumstances warranting
departure from the rule. The Court further finds that Petitioner’s untimely Objections (ECF No.
23) are barred and his arguments are waived. Thomas, 474 U.S. at 155; Keeling v. Warden,
Lebanon Corr. Inst., 673 F.3d 452, 458 (6th Cir. 2012) (a district court may resolve a case on the
grounds of waiver when a party, after proper notification, fails to file timely objections to a
magistrate judge’s report); Walters, 638 F.2d at 949-50; Romanda v. Bunting, No. 3:14CV1946,

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(1:17CV02196)
2015 WL 6964596 (N.D. Ohio Nov. 10, 2015), reconsideration denied, No. 3:14CV1946 (N.D.
Ohio Dec. 14, 2015) (Katz, J.) (finding objections were filed two days after the expiration of the
extension of time).
Accordingly, the Report and Recommendation of the magistrate judge is hereby adopted.
Lorenzo Thigpen’s Petition for a Writ of Habeas Corpus will be dismissed.
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.

April 30, 2020
Date

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

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