Wilson v. Coleman

Filing 19

Order Adopting 16 Report and Recommendation. The Motion to Stay 17 is denied, and the Petition 1 is dismissed. This Court further certifies an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. §§ 1915(a)(3), 2253(c). Judge Jack Zouhary on 5/6/2019. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Dwayne Wilson,

Case No. 3:17 CV 2500
Petitioner,

ORDER ADOPTING
REPORT AND RECOMMENDATION

-vsJUDGE JACK ZOUHARY
Warden John Coleman,
Respondent.

Petitioner pro se Dwayne Wilson, a prisoner in state custody, filed a Petition seeking a writ
of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). This case was referred to Magistrate Judge
Jonathan Greenberg for a Report and Recommendation (R&R) under Local Rule 72.2. The R&R
(Doc. 16) recommends the Petition be dismissed as procedurally defaulted (id. at 18, 28). The
deadline for objections has passed, and Wilson filed none. Wilson did file, however, a Motion to
Stay (Doc. 17), which Coleman opposes (Doc. 18).
Turning first to Wilson’s Motion to Stay, he asks this Court to stay his Petition pursuant to
Rhines v. Weber, 544 U.S. 269, 279 (2005). But Rhines discussed staying “mixed” petitions -- those
that include both exhausted and unexhausted claims. Id. at 271. The reason for staying a mixed
petition is that a stay “allow[s] the petitioner to present his unexhausted claims to the state court in
the first instance, and then to return to federal court for review of his perfected petition.” Id. at 271–
72. Here, by contrast, Rhines’s stay-and-abeyance procedure does not apply because “this is not a
mixed petition” (Doc. 18 at 3). Wilson’s Petition contains only claims that are procedurally defaulted
(Doc. 16 at 16, 27). Thus, a stay here is not appropriate.

Turning next to the R&R, this Court reviews de novo those portions of the R&R to which
objections are made. 28 U.S.C. § 636(b)(1). Failure to file objections within the timeframe set forth
in the statute constitutes a waiver of de novo review. See Thomas v. Arn, 474 U.S. 140, 153–55
(1985); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). This Court has reviewed the
R&R and finds it accurately states the facts and law. This Court therefore adopts the R&R in its
entirety.
Accordingly, the Motion to Stay (Doc. 17) is denied, and the Petition (Doc. 1) is dismissed.
This Court further certifies an appeal from this decision could not be taken in good faith, and there is
no basis upon which to issue a certificate of appealability. 28 U.S.C. §§ 1915(a)(3), 2253(c).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
May 6, 2019

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