Tubbs v. Attorney General of the State of Ohio

Filing 10

Order: The Court ADOPTS the Magistrate Judge's Report and Recommendation (ECF No. 9 ) and DISMISSES the action WITH PREJUDICE. Further, the Court DIRECTS the Clerk to enter judgment accordingly. Judge J. Philip Calabrese on 1/18/2023. (Y,A)

Case: 4:21-cv-00925-JPC Doc #: 10 Filed: 01/18/23 1 of 3. PageID #: 1102

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JERMAINE TUBBS,
Petitioner,
v.
THOMAS SCHWEITZER, Warden,
Respondent.

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Case No. 4:21-cv-00925
Judge J. Philip Calabrese
Magistrate Judge Thomas M. Parker

ORDER
Before the Court is the Magistrate Judge’s Report and Recommendation (ECF
No. 9) filed on December 7, 2022. The Magistrate Judge recommends that the Court
deny Petitioner Jermaine Tubbs’ petition for a writ of habeas corpus without granting
a certificate of appealability. Mr. Tubbs did not object to that recommendation.
The Report and Recommendation advised both parties that a failure to object
within 14 days may result in waiver of rights on appeal, which includes the right to
review before the Court. (See id., PageID #1100–01.) Under the law of this Circuit,
“failure to object to a magistrate judge’s Report and Recommendation results in a
waiver of appeal on that issue as long as the magistrate judge informs parties of that
potential waiver.” United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019)
(emphasis added); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); see
also Thomas v. Arn, 474 U.S. 140, 152 (1985) (holding that the Sixth Circuit’s waiver
rule is within its supervisory powers and “[t]here is no indication that Congress, in

Case: 4:21-cv-00925-JPC Doc #: 10 Filed: 01/18/23 2 of 3. PageID #: 1103

enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate’s
report to which no objections are filed”).
Recently, the Sixth Circuit clarified this rule: failure to object is not a waiver,
but a forfeiture. Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (“We clarify
that forfeiture, rather than waiver, is the relevant term here.”). This is so because
“[w]aiver is different than forfeiture.” United States v. Olando, 507 U.S. 725, 733
(1993); Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring)
(noting

the

Supreme

Court’s

cases

“often

used

[waiver

and

forfeiture]

interchangeably,” but that “[t]he two are really not the same.”). This difference
matters because forfeited issues may, in certain circumstances, nevertheless be
considered on appeal.” Berkshire, 928 F.3d at 530 (citing Harris v. Klare, 902 F.3d
630, 635–36 (6th Cir. 2018)).
In any event, the time for filing objections to the Report and Recommendation
has passed. Petitioner neither objected, nor provided some legitimate reason why he
failed to do so. Further, upon the Court’s independent review of the record, there
does not appear to be clear error in the Magistrate Judge’s Report and
Recommendation. Therefore, the Court ADOPTS the Report and Recommendation
(ECF No. 9) and DISMISSES the action WITH PREJUDICE. The Court further
DIRECTS the Clerk to enter judgment accordingly.
SO ORDERED.

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Case: 4:21-cv-00925-JPC Doc #: 10 Filed: 01/18/23 3 of 3. PageID #: 1104

Dated: January 18, 2023

J. Philip Calabrese
United States District Judge
Northern District of Ohio

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