Fox v. Turner

Filing 15

Memorandum, Opinion and Order Adopting the Report and Recommendation re 13 of the Magistrate Judge and dismissing this matter. An appeal from this decision may not be taken in good faith and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 4/17/17. (K,C)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION Lincoln E. Fox, Petitioner, vs. Neil Turner, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:15CV2542 JUDGE JOHN R. ADAMS MEMORANDUM OF OPINION AND ORDER This action is before the Court upon objections filed by Petitioner Lincoln E. Fox, asserting error in the Report and Recommendation (“the R&R”) of the Magistrate Judge. The Court ADOPTS the R&R (Doc. 13) in its entirety. The Petition is hereby DISMISSED. Where objections are made to a magistrate judge’s R&R this Court must: must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). However, the district court need not provide de novo review where the objections are “[f]rivolous, conclusive or general.” Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982). The parties have “the duty to pinpoint those portions of the magistrate’s report that the district court must specially consider.” Id. at 410 (footnote omitted); see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). 1 In the R&R, the Magistrate Judge concluded that Lincoln had procedurally defaulted all four of his grounds for relief. In his objections, Fox asserts as follows: “First, Fox objects to the finding that all four of his claims should be dismissed as procedurally defaulted.” Doc. 14 at 2. No other discussion is made of the R&R’s analysis of procedural default. As Fox’s sole objection is conclusive and makes no effort to highlight the area of the R&R this Court should review, it does not entitle him to a de novo review. Moreover, despite that fact, this Court’s independent review of the R&R reveals no error in its procedural default analysis. Accordingly, Fox’s objection lacks merit. Fox’s objection is overruled. The R&R is adopted, and the petition is hereby 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. 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. April 14, 2017 /s/ John R. Adams_______ JUDGE JOHN R. ADAMS UNITED STATES DISTRICT COURT 2

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