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)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Lincoln E. Fox,

Petitioner,
vs.
Neil Turner,

Respondent.

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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).

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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

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