Perkins v. Miller

Filing 18

Opinion and Order signed by Judge James S. Gwin on 7/17/15 adopting the Report and Recommendation of the Magistrate Judge. The Court denies petitioner's request to stay his petition, grants petitioner's request to dismiss the petition without prejudice and denies as moot petitioner's motion for an evidentiary hearing. (Related Docs. 1 , 15 , 17 ) (M,G)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO ------------------------------------------------------: CORY A. PERKINS, : : Petitioner, : : v. : : MICHELLE MILLER, Warden, : : Respondent. : : ------------------------------------------------------- CASE NO. 3:14-cv-02572 OPINION & ORDER [Resolving Docs. 1, 17] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Petitioner Cory Perkins seeks a writ of habeas corpus under 28 U.S.C. § 2254 to vacate his conviction on three counts of rape.1/ On June 19, 2015, Perkins filed a motion to stay his petition or to dismiss it without prejudice.2/ Perkins concedes that he has not yet exhausted state remedies with regard to the claims in his petition.3/ On June 26, 2015, Magistrate Judge Limbert issued a Report and Recommendation (“R&R”), recommending that the Court deny Perkins’s motion to stay, but grant Perkins’s motion to dismiss his petition without prejudice.4/ Magistrate Judge Limbert further recommended that Perkins’s motion for an evidentiary hearing5/ be denied as moot.6/ The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a R&R to which a party has made an objection.7/ Parties must file any objections 1/ Doc. 1. 2/ Doc. 15. 3/ Id. 4/ Doc. 17. Doc. 5. 5/ 6/ Doc. 17 at 3. 7/ 28 U.S.C. § 636(b)(1)(C). -1- Case No. 3:14-cv-02572 Gwin, J. to a R&R within fourteen days of service.8/ Failure to object within that time waives a party’s right to have the Court review the R&R.9/ Absent objection, a district court may adopt the R&R without review.10/ Neither party has objected to the R&R. Moreover, having conducted its own review of the record and the parties’ briefing in this case, the Court agrees with the conclusions of Magistrate Judge Limbert. Accordingly, the Court ADOPTS in whole Magistrate Judge Limbert’s R&R and incorporates it fully herein by reference. The Court DENIES Perkins’s request to stay his petition, but GRANTS Perkins’s request to dismiss his petition without prejudice. Further, the Court DENIES Perkins’s motion for an evidentiary hearing as moot. IT IS SO ORDERED. s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE Dated: July 17, 2015 8/ Fed. R. Civ. P. 72(b)(2); LR 72.3(b). 9/ LR 72.3(b); see Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). 10/ See Thomas, 474 U.S. at 149. -2-

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