Welly v. State of Ohio

Filing 12

Memorandum Opinion and Order For the reasons set forth herein, the Report and Recommendation of the Magistrate Judge is hereby adopted. Eric J. Welly'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 12/20/2018. (S,Ke)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ERIC J. WELLY,
Petitioner,
v.
STATE OF OHIO,
Respondent.

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CASE NO. 3:17CV600

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

Pro se Petitioner Eric J. Welly filed a Petition for a Writ of Habeas Corpus1 pursuant to
28 U.S.C. § 2254 (ECF No. 1), alleging three (3) grounds for relief which challenge his
conviction and sentence in the Seneca County Court of Common Pleas, Case No. 14-CR-0193.
A Seneca County Grand Jury indicted Petitioner on one count of rape of a child less than ten
years of age in violation of Ohio Rev. Code § 2907.02(A)(1)(b), (B). ECF No. 7-1 at PageID #:
74-75. Petitioner initially pleaded not guilty. Id. at PageID #: 76-77. Later, Welly, through
counsel, filed a plea of not guilty and not guilty by reason of insanity. Id. at PageID #: 78-79.
After court-ordered competency and sanity evaluations, the court found Petitioner competent to
stand trial. Id. at PageID #: 82-83. The court proceeded with arraignment, and Petitioner
restated his plea of not guilty. Id. at PageID #: 82.

1

Petitioner sued the State of Ohio. He should have sued Alan J. Lazaroff,
Warden of the Mansfield Correctional Institution, where Petitioner is currently
incarcerated. Warden Lazaroff filed a return of writ in response to Petitioner’s petition.
ECF No. 7.

(3:17CV600)
On November 17, 2014, Petitioner changed his plea from not guilty to guilty of the lesser
included offense of rape, removing reference to the victim’s age. Id. at ECF No. 84-87. The
court advised Petitioner of his rights, his potential sentence, and accepted his plea of guilty. Id.
at PageID #: 88-90. Petitioner was sentenced to a prison term of 25 years to life. Id. at PageID
#: 89. After unsuccessfully seeking relief in state court, Petitioner filed his habeas petition in
federal court.
The case was referred to Magistrate Judge Thomas M. Parker for preparation of a report
and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). On November 20,
2018, the magistrate judge issued a Report and Recommendation (ECF No. 11). In his report,
the magistrate judge recommends that the Court deny the habeas petition for the following
reasons: (1) Ground One is non-cognizable on habeas review, procedurally defaulted, and lacks
merit; and (2) Grounds Two and Three are non-cognizable on habeas review and fail on the
merits. Id.
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 Report were due on December 4, 2018.2
Neither party has timely filed any such objections. The Court must assume that the parties are
satisfied with the magistrate judge’s recommendations. Any further review by this Court would

2

Under Fed. R. Civ. P. 6(d), three days must be added to the fourteen-day time
period because Petitioner was served a copy of the Report by mail. See Thompson v.
Chandler, 36 F. App'x 783, 784 (6th Cir. 2002).

(3:17CV600)
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).
Accordingly, the Report and Recommendation of the magistrate judge is hereby adopted.
Eric J. Welly’s Petition for a Writ of Habeas Corpus is dismissed. ECF No. 1. 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.

December 20, 2018
Date

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