Boles v. Warden, Chillicothe Correctional Institution

Filing 80

ORDER adopting Report and Recommendation re 72 Report and Recommendation dismissing with prejudice. Signed by Judge Michael R. Barrett on 3/29/21. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Patrick Boles,
Petitioner,

Case No. 1:14cv903

v.

Judge Michael R. Barrett

Warden, Chillicothe
Correctional Institution,
Respondent.
ORDER
This matter is before the Court on the Magistrate Judge’s February 4, 2021 Report
and Recommendations (“R&R”) recommending that the Amended Petition be dismissed
with prejudice. (Doc. 72). The Magistrate Judge notified the parties that “any party may
serve and file specific, written objections to the proposed findings and recommendations
within fourteen days after being served with this Report and Recommendations.” (Doc.
72, PageID 2262). Petitioner was granted a thirty-day extension of time to file objections.
(Doc. 74). Petitioner did not file objections.
Instead, on March 12, 2021, Petitioner filed a Notice of Intent to File in the Supreme
Court of the United States. (Doc. 77). On March 15, 2021, the Magistrate Judge entered
a Notice to Petitioner informing him that any document seeking relief from the Supreme
Court must be filed directly with that Court in Washington, D.C.; and reiterating that any
objections must be filed by March 20, 2021. (Doc. 78). On March 24, 2021, Petitioner
filed a “Notice of Contact” explaining that he had been in contact with the Clerk’s Office
for the Supreme Court. (Doc. 79).

To the extent that Petitioner’s Notices could be construed as objections, “[t]he filing
of vague, general, or conclusory objections does not meet the requirement of specific
objections and is tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App'x
354, 356 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). The
failure to object to the magistrate judge's report releases the Court from its duty to
independently review the motions. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985). However, the Court finds the Magistrate Judge’s February 4, 2021
R&R (Doc. 72) to be thorough, well-reasoned, and correct. Accordingly, it is hereby
ORDERED that:
1. The Magistrate Judge’s February 4, 2021 R&R (Doc. 72) is ADOPTED in its
entirety and the Amended Petition (Doc. 24) is DISMISSED WITH PREJUDICE;
2. A certificate of appealability is not issued with respect to the claims which were
addressed on the merits herein, in the absence of a substantial showing that
petitioner has stated a “viable claim of the denial of a constitutional right” or that
the issues presented in those grounds for relief are “adequate to deserve
encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475
(2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. In addition, a certificate of appealability is not issued with respect to the remaining
claims, which this Court has concluded are procedurally barred from review,
because under the first prong of the two-part standard enunciated in Slack, 529
U.S. at 484-85, “jurists of reason” would not find it debatable whether this Court is
correct in its procedural ruling. Because the first prong of the Slack test has not
been met, the Court need not address the second prong of that test. Nevertheless,
assuming that “jurists of reason” could find the procedural ruling debatable, the
Court further finds that the second prong of the Slack test has not been met
because “jurists of reason” would not find it debatable whether petitioner has stated
a viable constitutional claim in the defaulted grounds for relief. See id. at 484.
4. With respect to any application by petitioner to proceed on appeal in forma
pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this Order would not be taken in “good faith,” and therefore the Court DENIES any
application by petitioner to proceed on appeal in forma pauperis. See Fed. R. App.
P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). Petitioner
remains free to apply to proceed in forma pauperis in the Court of Appeals.
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5. This matter is CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Court

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