Miller v. Bracy

Filing 8

Opinion and Order Adopting Report and Recommendation of the Magistrate Judge and granting Respondent's Motion to dismiss. Related document 7 , 1 , 6 . Signed by Judge Dan Aaron Polster on 1/19/2017. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONOVAN MILLER,
Petitioner,
vs.
CHARMAINE BRACY, Warden,
Respondent.

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CASE NO. 4:16 CV 1275
JUDGE DAN AARON POLSTER
OPINION AND ORDER

On May 26, 2016, Donovan Miller filed a Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (“§ 2254 Petition”). (Doc #: 1.) Miller, who was
convicted of aggravated murder with a firearm specification and tampering with evidence, was
ultimately sentenced to 33 years to life in prison with credit for time served. Miller contends that
his convictions violate the U.S. Constitution based on four grounds (Fifth Amendment Miranda
violation, improper jury instruction, ineffective assistance of counsel, insufficient evidence).
On June 27, 2016, the Magistrate Judge issued a briefing schedule directing Respondent
Charmaine Bracy to file an answer within 60 days, and directing Miller to file a traverse 30 days
later. (Doc #: 4.) A copy of this order was mailed to Miller that same day. (Non-document
order of 6/27/2016.) On August 25, 2016, Respondent filed a Motion to Dismiss, arguing that
the § 2254 Petition is time-barred, Miller is not entitled to equitable tolling, and he has not
demonstrated a colorable showing of a miscarriage of justice. (Doc #: 6.) Despite the lapse of
four months, Miller has not filed a traverse or requested an extension of time to file one.

The case is now before the Court on the Report and Recommendation of Magistrate
Judge Jonathan D. Greenberg (“R & R”). (Doc #: 7.) The Magistrate Judge recommends that
the Court grant Respondent’s unopposed motion to dismiss the § 2254 Petition. (Id.) The
Magistrate Judge issued the R & R on December 22, 2016, and mailed a copy of the R & R to
Miller that same day. (Non-document order of 12/22/2016.) At the end of the R & R, the
Magistrate Judge stated the following:
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk
of Court within fourteen (14) days after the party objecting has been served with a
copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure to file
objections within the specified time may waive the right to appeal the District
Court’s order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 111 (1986).
(Doc #: 7 at 8.)
Under the relevant statute,
Within fourteen days after being served with a copy [of the R&R],
any party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made. . .
28 U.S.C. § 636(b)(1) (emphasis added). As noted, a copy of the R & R was mailed to Petitioner
on December 22, 2016. It is now January 19, 2017 and Miller has yet to file objections or
requested an extension of time to file them.
The Court has reviewed the Magistrate Judge’s thorough and well-written R & R. The
Court agrees with the Magistrate Judge that Miller’s claims are time-barred and he has failed to
demonstrate equitable tolling or a miscarriage of justice. Accordingly, the Court ADOPTS the
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R & R (Doc. # 7), GRANTS Respondent’s Motion to Dismiss (Doc #: 6), and DISMISSES the
§ 2254 Petition (Doc. # 1).
IT IS SO ORDERED.
/s/ Dan Aaron Polster January 19, 2017
Dan Aaron Polster
United States District Judge

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