Garrett v. Belmont Correctional Institution

Filing 10

Order Adopting 9 Report and Recommendation in its entirety. The petition is, therefore, denied, and the case is dismissed. Further, for the reasons stated in the Magistrate Judge's Report and Recommendation, a reasonable jurist could not conclude that dismissal of the Petition is in error or that Petitioner should be permitted to proceed further. Accordingly, 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 there is no basis upon which to issue a certificate of appealability.Judge Donald C. Nugent(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMIE GARRETT,
Petitioner,
v.

MICHELLE MILLER,
Warden,
Respondent.

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CASE NO. 5:11 CV 2638
JUDGE DONALD C. NUGENT
ORDER ADOPTING
MAGISTRATE’S REPORT AND
RECOMMENDATION

This matter comes before the Court upon the Report and Recommendation of Magistrate
Judge Kenneth S. McHargh. The Report and Recommendation (ECF # 9), issued on August 13,
2012, is hereby ADOPTED by this Court. Petitioner filed this action requesting a writ of habeus
corpus pursuant to 28 U.S.C. §2254, challenging the constitutionality of his judgments of conviction
for menacing by stalking and violating a protective order in Stark County, Ohio. The Respondent
filed a motion to dismiss the petition, (ECF #8), to which the Petitioner has not responded.
The Magistrate Judge recommends that the Petitioner’s first claim be denied because he
has not established a violation of any clearly established federal law, as determined by the
Supreme Court of the United States. Rather, he challenges the state court’s application of state
sentencing laws. Further, the Magistrate has recommended that the other two claims be denied

because they have been procedurally defaulted. The Petitioner has not filed any objections to
the Magistrate’s Report and Recommendation.
The Court has reviewed de novo the Report and Recommendation, see Ohio Citizen
Action v. City of Seven Hills, 35 F. Supp. 2d 575, 577 (N.D. Ohio 1999), and ADOPTS the
Report and Recommendation in its entirety. The petition is, therefore, denied, and the case is
dismissed. Further, for the reasons stated in the Magistrate Judge’s Report and
Recommendation, a reasonable jurist could not conclude that dismissal of the Petition is in error
or that Petitioner should be permitted to proceed further. Accordingly, 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 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.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED:

September 10, 2012

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