Green v. Warden, Franklin Medical Center

Filing 19

ORDER AND REPORT AND RECOMMENDATIONS re 15 MOTION to Dismiss filed by James Edward Green. ( Objections to R&R due by 12/8/2014), Motions terminated: 18 MOTION filed by James Edward Green. Signed by Magistrate Judge Norah McCann King on 11/21/2014. (pes1)(This document and ECF. 15 have been sent by the Clerks Office by regular and certified mail (7009 2820 0003 5796 3065) to the petitioner. )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES EDWARD GREEN,
Petitioner,
vs.

Civil Action 2:14-cv-1698
Judge Smith
Magistrate Judge King

WARDEN, FRANKLIN MEDICAL CENTER,
Respondent.

ORDER and
REPORT AND RECOMMENDATION

This is a habeas corpus action under 28 U.S.C. § 2254 in which
petitioner claims that his state criminal conviction violates the
Fourth and Fourteenth Amendments. On November 12, 2014, the Clerk
filed a document titled Motion for Dismissal of Writ of Habeas Corpus
Filed by Petitioner, which purports to be a motion to voluntarily
dismiss the action. ECF 15. In response, respondent asks that the
action be dismissed with prejudice because of certain statements and
allegations contained in ECF 15. Respondent’s Response to Petitioner’s
Motion to Dismiss Petition, ECF 17. This matter is now before the
Court on petitioner’s November 20, 3014 motion requesting a copy of
ECF 15 and an extension of time to respond to ECF 17. Petitioner’s
Motion Requesting (Doc. 15) & (Doc. 15, PAGE ID #77) to Be Produced as
Proof, and Petitioner’s Motion for an Extension of Time to Respond to
Respondent’s Motion to Dismiss Petition, ECF 18. In that motion,
petitioner denies ever filing a motion to voluntarily dismiss the
action.

1

A comparison of ECF 15 with the Petition, ECF 1, suggests that
the handwriting in the two documents, including the signature, is not
the same. Regardless of the source of ECF 15, it is clear that
petitioner does not intend to seek the voluntary dismissal of this
action. Under these circumstances, it is RECOMMENDED that the Motion
for Dismissal of Writ of Habeas Corpus Filed by Petitioner, ECF 15, be
denied and ordered stricken from the record.
The Clerk is DIRECTED to mail a copy of ECF 15 to petitioner and
to indicate on the docket that a copy has been mailed to petitioner.
Petitioner’s request for an extension of time to respond to ECF 17 is
DENIED as moot.
The Clerk is DIRECTED to remove ECF 18 from the Court’s pending
motions list.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that

2

“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

November 21, 2014
(Date)

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

3

to