Johnson v. Miller

Filing 11

Memorandum Opinion and Order: For the reasons set forth herein and for the reasons set forth in the Magistrate Judges Report and Recommendation, which is incorporated herein, the Petition for Writ of Habeas Corpus is denied as untimely. Furth ermore, 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 Patricia A. Gaughan on 4/27/15. (LC,S) re 7 , 10

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

David Johnson,
Petitioner,
vs.
Michele Miller, Warden
Respondent.

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CASE NO. 5:14 CV 1413
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge McHargh (Doc. 10) which recommends denial of the Petition for Writ of Habeas
Corpus pending before the Court. Petitioner did not file objections to the recommendation.
For the following reasons, the Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides, “The judge must determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or modify any

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proposed finding or recommendation.” When no objections have been filed this Court need
only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation. See Advisory Committee Notes 1983 Addition to Federal Rule of Civil
Procedure 72.
Discussion
Petitioner is incarcerated as a result of his conviction for felonious assault in the Stark
County Court of Common Pleas arising out of his role in the severe beating of Ralph Davison.
The Magistrate Judge determined that the respondent’s motion to dismiss the habeas petition
on timeliness grounds should be granted. This Court agrees.
The AEDPA requires a petition to be filed within one year after the state conviction
becomes final. Petitioner’s conviction became final on February 27, 2013 after he did not
seek certiorari within the 90 day period following the state supreme court’s denial of his leave
to appeal. Thus, petitioner had until February 27, 2014 to file his petition. The petition,
however, was not filed until June 27, 2014. It is, therefore, untimely.
Having no objections, the Court has reviewed the Report and Recommendation and
found no clear error. Accordingly, it accepts the recommendation.
Conclusion
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, which is incorporated herein, the Petition for Writ of Habeas
Corpus is denied as untimely. Furthermore, 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.

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22(b).
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 4/27/15

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