Nethers v. Warden

Filing 17

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 14 in that this action is DISMISSED. Signed by Judge Gregory L Frost on 11/30/10. (sem1)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LOREN NETHERS, Petitioner, v. EDWARD SHELDON, WARDEN, Respondent. OPINION AND ORDER On October 28, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. objections. For the reasons that follow, the Court OVERRULES Petitioner's CASE NO. 2:09-CV-324 JUDGE FROST MAGISTRATE JUDGE ABEL

The Court ADOPTS and AFFIRMS the Magistrate Judge's Report and

Recommendation. This action hereby is DISMISSED. In this habeas corpus petition, Petitioner asserts that he was denied the effective assistance of trial counsel because his attorney failed to request a competency evaluation and denied due process on the same basis, and that he was sentenced in violation of State v. Pelfrey, 112 Ohio St.3d 422 (2007). The Magistrate Judge recommended dismissal of all of Petitioner's claims as procedurally defaulted. Petitioner objects to this recommendation. Petitioner states that he did not deliberately disregard the Rules of the Ohio Supreme Court, and thought that a "three day mailbox rule" applied to all state prisoner filings and appears to contend that prison officials deliberately delayed the mailing of his filing(s) so as to prevent him from obtaining review in the Ohio Supreme

Court. See Objections. Pursuant to 28 U.S.C. § 28 U.S.C. 636(b), this Court has conducted a de novo review. The record is without support for Petitioner's allegations. For the reasons detailed in the Magistrate Judge's Report and Recommendation, this Court likewise concludes that Petitioner has failed to establish cause for his procedural default. The Court OVERRULES Petitioner's objections. The Court ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation. This action hereby is DISMISSED. IT IS SO ORDERED. /s/ Gregory L. Frost GREGORY L. FROST UNITED STATES DISTRICT JUDGE

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