Nunez v. Coleman

Filing 20

Memorandum Opinion and Order. The Report and Recommendation of the Magistrate Judge is adopted (Doc. No. 17 ) and the petition for a writ of habeas corpus (Doc. No. 1 ) is dismissed. Further, for these same reasons, 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. Section 2253; Fed. R. App. P. 22(b). Judge Sara Lioi on 6/6/2019. (O,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

VICTOR NUNEZ,

PETITIONER,
vs.
SEAN BOWMAN,1

RESPONDENT.

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CASE NO. 1:16CV1931
CASE NO. 1:17CV2325
JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the report and recommendation (“R&R”) of the Magistrate
Judge in the above-entitled actions, filed May 17, 2019. (Case No. 1:16-cv-1931 [“Nunez
I”], Doc. No. 21; Case No. 1:17-cv-2325 [“Nunez II”], Doc. No. 17.) 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).2 In these cases, the fourteen-day period has elapsed and no
objections have been filed. 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

1

Sean Bowman is the current warden of Toledo Correctional Institution and as such is the proper party
respondent. Rule 2(a) of the Rules Governing Section 2254 Cases.
2

Moreover, the R&R advised the parties that any objections to the report were required to be filed within 14
days of the issuance of the R&R. (Nunez I, Doc. No. 21 at 2065; Nunez II, Doc. No. 17 at 253.)

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); see United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
After the R&R was filed, on May 30, 2019, petitioner filed an untimely first
supplemental traverse in Nunez II.3 The filing did not reference the R&R and did not even
mention the grounds for relief raised in Nunez I. The Court has reviewed the Magistrate
Judge’s report and recommendation relative to those grounds and ADOPTS the same.
Accordingly, the Court dismisses Nunez I.
Likewise, the untimely supplemental traverse fails to address the Magistrate Judge’s
recommended disposition of petitioner’s grounds raised in Nunez II. However, it does
generally address the arguments raised in respondent’s supplemental answer to the Nunez II
petition. The Court has no duty to construct objections for petitioner, nor has it the
responsibility of treating petitioner’s untimely traverse as a properly filed objection to
specific findings contained in the R&R. See generally Powell v. United States, 37 F.3d
1499 (Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) (“Any report and
recommendation by a magistrate judge that is dispositive of a claim or defense of a party
shall be subject to de novo review by the district court in light of specific objections filed
by any party.”) (emphasis added); 28 U.S.C. § 636(b)(1)(C). Nonetheless, out of an
abundance of caution, the Court has reviewed the supplemental traverse and has considered
the arguments raised therein relative to the findings and conclusions contained in the R&R.

3

Petitioner filed a motion requesting an extension of 30 additional days in which to file his supplemental
traverse. (Nunez II, Doc. No. 11.) Noting the numerous delays in the prosecution of these habeas petitions, the
Magistrate Judge granted the motion, in part, and directed petitioner to file his supplemental traverse by May
13, 2019. (Id., Doc. No. 12.) At that time, petitioner was advised that no further extensions would be granted.
(Id. at 106.) Notwithstanding this warning, petitioner subsequently sought an additional 60 day extension
(Doc. No. 14), which was denied. (Non-Doc. Order, dated April 22, 2019.)
2

The Court determines that the supplemental traverse fails to suggest any error in the
Magistrate Judge’s conclusions that the first two grounds for relief are procedurally
defaulted, and that the third ground for relief—addressing a state court jury instruction—is
not cognizable on federal habeas review. Accordingly, the Court ADOPTS the R&R
relative to the grounds raised in Nunez II, and DISMISSES this action, as well.4
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. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.

Dated: June 6, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

4
After the Court had drafted the present Memorandum Opinion, but before it was filed on the docket,
petitioner filed a motion in Nunez II to “recommit” that case to the Magistrate Judge for consideration of
petitioner’s untimely supplemental traverse. (Nunez II, Doc. No. 19.) In the alternative, petitioner seeks an
enlargement of time in which to file objections to the R&R. (Id. at 277.) Petitioner’s request to “recommit”
Nunez II to the Magistrate Judge is DENIED AS MOOT inasmuch as the Court considered petitioner’s
untimely traverse on the merits. Further, petitioner’s untimely request for additional time in which to file
objections to the R&R is DENIED. While petitioner maintains he only recently received a copy of the R&R
and he needs a minimum of 60 days in which to “adequately research and prepare objections” (id. at 279), he
fails to indicate what objections he would lodge, if given additional time, and he fails to explain how
additional time would alter the Court’s conclusion that the grounds raised in Nunez II are either procedurally
defaulted or non-cognizable on federal habeas review.
3