Cole v. Warden

Filing 7

Order Adopting Report and Recommendation re 6 . The court dismisses Petitioners Writ of Habeas Corpus (ECF No. 1). The court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis on which to issue a certificate of appealability. Fed.R.App.P. 22(b); 28 U.S.C. § 2253(c). Signed by Judge Solomon Oliver, Jr on 2/29/2016. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SCOTT COLE,
Petitioner
v.
JASON BUNTING, Warden,
Respondent

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Case No.: 3:15 CV 880

JUDGE SOLOMON OLIVER, JR.

ORDER

On May 4, 2015, Petitioner Scott Cole (“Petitioner”) filed a Petition for Writ of Habeas
Corpus (“Petition”) (ECF No. 1) pursuant to 28 U.S.C. § 2254, challenging the constitutionality of
his 1998 state court conviction, where Petitioner pleaded guilty to felonious assault, kidnapping,
rape, and attempted murder. Petitioner argues that his Petition should be granted based on the
following grounds:
Ground One: Petitioner was denied right of appeal.
Ground Two: Petitioner was denied right to effective assistance on appeal.
Ground Three:Petitioner was denied due process of law.
(See Pet. at 5-6, ECF No. 1.) The court referred the case to Magistrate Judge Greg White for
preparation of a Report and Recommendation (“R&R”).

Respondent Warden of Marion

Correctional Institution (“Respondent”) filed a Motion to Dismiss on July 16, 2015 (ECF No. 5).
Petitioner did not file a Traverse or Brief. The Magistrate Judge submitted his R&R (ECF No. 6)
on January 22, 2016, recommending that the court dismiss the Petition as time barred, since
Petitioner waited fourteen years after the AEDPA’s one-year statute of limitations expired to file his

Petition. The Magistrate Judge also concluded that application of equitable tolling or proof of actual
innocence to overcome the expiration of the statute of limitations would be inappropriate, since
Petitioner had not established the requirements necessary for either benefit. A copy of the R&R was
mailed to Petitioner on January 22, 2016.
As of the date of this Order, no objections to the R&R have been filed. The Advisory
Committee Notes to Rule 72(b) of the Federal Rules of Civil Procedure state: “When 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, the Supreme Court stated, “[i]t
does not appear that Congress intended to require district court review of a magistrate’s factual or
legal conclusions, under a de novo or any other standard, when neither party objects to those
findings.” 474 U.S. 140, 150 (1985). Furthermore, by declining to object, the parties have waived
the right to appeal the district court’s decision adopting the Magistrate Judge’s recommendation.
United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981); Arn, 474 U.S. at 155.
The court reviewed the Magistrate Judge’s R&R and finds no clear error. Accordingly, the
court adopts as its own the Magistrate Judge’s R&R (ECF No. 6). The court dismisses Petitioner’s
Writ of Habeas Corpus (ECF No. 1). The court further certifies that pursuant to 28 U.S.C. §
1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis
on which to issue a certificate of appealability. Fed.R.App.P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
February 29, 2016

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