Perkins, Jr. v. Bunting

Filing 17

Memorandum of Opinion and Order For the reasons set forth herein, the Report and Recommendation (ECF No. 14 ) of the Magistrate Judge is hereby adopted. Respondent's Motion to Dismiss (ECF No. 9 ) is granted. William H. Perkins, Jr.&# 039;s Petition for a Writ of Habeas Corpus is 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, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 9/19/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM H. PERKINS, JR.,
Petitioner,
v.
LYNEAL WAINWRIGHT,1 Warden,
Respondent.

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CASE NO. 3:16CV1669
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 9]

Pro Se Petitioner William H. Perkins, Jr. filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 1), alleging 11 grounds for relief which challenge the
constitutional sufficiency of his conviction and sentence for aggravated possession of drugs,
aggravated trafficking in drugs, aggravated robbery with a firearm specification, receiving stolen
property, tampering with evidence, and complicity to tampering with evidence.
On July 11, 2016, the case was referred to Magistrate Judge George J. Limbert for
preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule
72.2(b)(2).
After Respondent filed a Motion to Dismiss (ECF No. 9) and Petitioner filed a Response
(ECF No. 12), the magistrate judge submitted a Report and Recommendation (ECF No. 14) on

1

Warden Jason Bunting was the original respondent. He was sued in an official
capacity as a public officer. According to the Ohio Department of Rehabilitation and
Correction website (http://www.drc.ohio.gov/mci (last visited September 18, 2017)),
Petitioner is currently serving a sixteen year and three month term of incarceration at the
Marion Correctional Institution. Lyneal Wainwright currently is the Warden at that
facility. Pursuant to Fed. R. Civ. P. 25(d), Wainwright’s name has been automatically
substituted as a party.

(3:16CV1669)
August 21, 2017 recommending that the motion be granted and the petition be dismissed as
barred by 28 U.S.C. § 2244’s statute of limitations. ECF No. 14 at PageID #: 980-81. As noted
in the Report, Petitioner has failed to allege any extraordinary circumstances that would justify
equitable tolling of the statute of limitations. ECF No. 14 at PageID #: 981. Moreover, he is not
entitled to the actual innocence exception. ECF No. 14 at PageID #: 982.
Fed. R. Civ. P. 72(b)(2) provides that objections to a report and recommendation must be
filed within 14 days after service. Objections to the Magistrate Judge’s Report were, therefore,
due on September 5, 2017. Petitioner has not filed any objections.2 Any further review by the
Court would be a duplicative and inefficient use of the Court’s limited resources. Thomas v. Arn,
728 F.2d 813 (6th Cir. 1984), aff’d, 474 U.S. 140 (1985); Howard v. Secretary of Health and
Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

2

On August 28, 2017, Petitioner filed a Motion for Extension of Time (ECF No.
15) requesting until November 6, 2017 to file objections to the Report. The Court
granted in part Petitioner’s Motion (ECF No. 15). Petitioner was given an additional 10
days – until September 15, 2017 – to file any objections he would like to be considered.
Non-document Order dated September 5, 2017. Rather than file objections, on
September 11, 2017, Petitioner filed another Motion for Extension of Time (ECF No. 16)
requesting until November 6, 2017 to file objections. The Court denied Petitioner’s
second Motion (ECF No. 16). Non-document Order dated September 15, 2017.
While it is true that Respondent was granted two extensions of time in which to
respond to the Court’s show cause order, see Non-document Orders dated September 12,
2016 and November 14, 2016, filing a response to the Petition (ECF No. 1) required the
assembly and review of documents from the Seneca County, Ohio Clerk of Courts prior
to preparing and filing the Motion to Dismiss (ECF No. 9). On the other hand, filing
objections required review of the Report and Recommendation (ECF No. 14), and
Petitioner was given 24 days, 10 days more than the Civil Rules require, in which to file
his objections.

(3:16CV1669)
Accordingly, the Report and Recommendation (ECF No. 14) of the magistrate judge is
hereby adopted. Respondent’s Motion to Dismiss (ECF No. 9) is granted. William H. Perkins,
Jr.’s Petition for a Writ of Habeas Corpus is 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, and that there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

September 19, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge