Miles v. Warden Marion Correctional Institution

Filing 29

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 22 ). Signed by Judge Timothy S. Black on 2/27/2017. (mr)(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
KEVIN MILES,
Petitioner,
vs.
WARDEN, MARION
CORRECTIONAL INSTITUTION,
Respondent.

:
:
:
:
:
:
:
:
:
:

Case No. 1:15-cv-572
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 22)

This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Michael R. Merz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court and, on November 28, 2016, submitted
a Report and Recommendation. (Doc. 22). Following Petitioner’s objections (Doc. 25),
this Court ordered the matter recommitted to the Magistrate Judge for a supplemental
Report and Recommendations. (Doc. 26). The Magistrate Judge submitted the
supplemental Report and Recommendations on January 20, 2017. (Doc. 27). Petitioner
filed objections to the supplemental Report and Recommendations on February 13, 2017.

1

(Doc. 28). 1
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo
all of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that such Report and Recommendations should be and is hereby adopted in
its entirety. Accordingly, IT IS ORDERED that:
1)

Petitioner’s petition for a writ of habeas corpus (Doc. 1) is DENIED
WITHOUT PREJUDICE;

2)

A certificate of appealability shall not issue with respect to any of the
grounds for relief alleged in the petition because petitioner has not stated a
"viable claim of the denial of a constitutional right," nor are the issues
presented "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)

The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal of
this Order would not be taken in good faith and therefore Petitioner is
denied leave to appeal in forma pauperis.

1

After reviewing the supplemental Report and Recommendations, Petitioner’s objections,
and the case record, the Court finds that Petitioner’s objections are not well taken. Petitioner’s
objections to the original Report and Recommendations argued that the state failed to prove it
had jurisdiction to try him and that his conviction is therefore invalid. (Doc. 25). Defendant’s
supporting arguments for this assertion included the fact that no grand jury transcript had been
produced and that the court of appeals’ judgment was invalid because it lacked a full trial
transcript. (Id. at 23–25). The supplemental Report and Recommendations outlined that
(1) these jurisdictional arguments were not exempt from the federal statute of limitations on
habeas corpus actions that barred the petition in this case and (2) Petitioner’s arguments were
meritless as “[i]t has never been the federal law in the United States that a person committed to
prison on process from a state court could force the State to prove from scratch that the detention
was lawful.” (Doc. 27, at 2–4). Petitioner’s objections to the supplemental Report and
Recommendations largely reframe his earlier objections and do not adequately refute the
Magistrate Judge’s conclusions.
2

IT IS SO ORDERED.
Date: 2/27/17

________________________
Timothy S. Black
United States District Judge

3