Chisholm v. Turner

Filing 19

Order Adopting Report and Recommendation of the Magistrate Judge and denying Petitioner's 8 Motion to Withdraw as Premature Filing (Doc. # 8 ). 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 John R. Adams on 12/9/13. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TREPEL CHISHOLM
Petitioner,
-vsNEIL TURNER
Warden,
Respondent.

) CASE NO. 5:13CV976
)
) JUDGE JOHN R. ADAMS
)
)
)
) ORDER
)
)
)

This matter came before the Court on Petitioner’s petition for habeas corpus pursuant to
28 U.S.C. §2254. Doc. 1. This Court referred the matter to the Magistrate Judge. On September
30, 2013, Petitioner filed a “Motion to Withdraw as Premature Filing with Affidavit,” in which
he requested to withdraw his petition as premature. Doc. 8. Respondent opposed the motion to
withdraw. Doc. 13. Petitioner “objected” to Respondent’s opposition. Doc. 15. The Magistrate
Judge stated that “[b]ecause Chisholm’s motion is potentially a dispositive motion,” he
submitted an interim report and recommendation noting that recommending that the Court deny
the motion. Doc. 14.
Fed. R. Civ. P. 72(b) provides that the parties may object to a report and recommendation
within 14 days after service. Petitioner did not file any objections to the Magistrate Judge’s
report and recommendation. Any further review by this Court would be a duplicative and
inefficient use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984);

Howard v. Sec’y of Health and Human Servs., 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.
The Motion to “Withdraw as Premature Filing” is hereby denied. Doc. 8. The Court notes that,
apparently in lieu of objections to the R&R, Petitioner filed a notice of appeal to the Sixth Circuit
Court of Appeals. However, the R&R is not a final, appealable Order and does not dispose of
Petitioner’s Petition.

The Court concludes that there is no non-frivolous basis for an

interlocutory appeal of this Order and therefore the matter remains pending before this Court for
review on the merits of the Petition. Out of an abundance of caution, 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.
IT IS SO ORDERED.

Dated: 12/9/13

/s/ John R. Adams_______________
UNITED STATES DISTRICT JUDGE