Clay v. Miller

Filing 9

Memorandum of Opinion and Order: For the reasons set forth in the Magistrate Judge's Report and Recommendation, which is incorporated herein, the petitioner's Motion for Summary Judgment is denied Judge Patricia A. Gaughan on 6/21/16. (LC,S) re 8

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Larrance Major Clay,
Petitioner,
vs.
Michele Miller, Warden
Respondent.

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CASE NO. 5:16 CV 525
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Kenneth Mchargh (Doc. 8) which recommends denial of petitioner’s Motion for
Summary Judgment filed in this matter in which a Petition for Writ of Habeas Corpus is
pending. 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

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recommendation to which objection is made. The judge may accept, reject, or modify any
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 filed a Motion for Summary Judgment (Doc. 7) although respondent’s
Return of Writ is not yet due. As recognized by the Magistrate Judge, petitioner essentially
seeks default judgment. But, respondent is not in default and default judgments are not
available in habeas corpus proceedings.
Having no objections, the Court has reviewed the Report and Recommendation and
found no clear error. The Court agrees with the findings of the Magistrate Judge and accepts
the recommendation.
Conclusion
For the reasons set forth in the Magistrate Judge’s Report and Recommendation,
which is incorporated herein, the petitioner’s Motion for Summary Judgment is denied.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 6/21/16

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