Green v. Warden, Franklin Medical Center

Filing 4

ORDER AND REPORT AND RECOMMENDATIONS. Petitioner's motion for leave to proceed in forma pauperis, ECF 3 , is GRANTED. It is RECOMMENDED that this action be dismissed for failure to state a claim for habeas corpus relief. Objections to R&R due by 10/20/2014. Signed by Magistrate Judge Norah McCann King on 10/2/2014. (pes1)

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
Petitioner seeks to file a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 without payment of fees or costs.

ECF 3.

Petitioner’s motion for leave to proceed in forma pauperis, ECF 3, is
GRANTED. All judicial officers who render services in this action
shall do so as if the costs had been prepaid.
However, having performed the preliminary review of the Petition
as required by Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court concludes that the Petition
fails to state a claim for relief.
The Petition, ECF 1, seeks to challenge petitioner’s May 2009
conviction, following a jury trial, in the Franklin County Court of
Common Pleas. Petitioner did not pursue a direct appeal from that
conviction, nor did he seek any other form of review of that
conviction.

Id. at PAGEID# 3 - 5. Petitioner’s present challenge to

the conviction reads, in its entirety, as follows: “Violation of my

1

Fourth and Fourteenth Amendment rights. No substantive law filed in
the public record of Case 08CR6930, State of Ohio v. James E. Green.
No state or federal substantive law filed in this matter for any
right, duty, or obligation or law. ” Id. at PAGEID# 6.
A federal court may entertain an application for a writ of habeas
corpus “only on the ground that [the petitioner] is in custody in
violation of the Constitution or laws or treaties of the United
States.”

28 U.S.C. § 2254(a). The petition must, among other things,

“state the facts supporting each ground. . . .”

Rule 2(c) of the

Rules Governing Section 2254 Cases in the United States District
Courts. Specifically, a petition must “state facts that point to a
‘real possibility of constitutional error.’”

Blackledge v. Allison,

431 U.S. 63, 75 n. 7 (1977)(quoting Advisory Committee Note to Rule 4,
Rules Governing Habeas Corpus Cases). A court must dismiss a petition
if “it plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district court. .
. .”

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts.
The Petition, even liberally construed, alleges no facts
whatsoever that would support a claim that petitioner was convicted in
violation of the Constitution or laws of the United States. The Court
is unable to conclude that the Petition presents a “‘real possibility
of constitutional error.’”

Blackledge, 431 U.S. at 75 no. 7.

The

Petition does not allege a basis for concluding that petitioner is
entitled to relief.
It is therefore RECOMMENDED that this action be dismissed for

2

failure to state a claim for habeas corpus relief.

The Clerk of Court is DIRECTED to mail a copy of the Petition and
of this Order and Report and Recommendation to the respondent and to
the Attorney General of Ohio, Criminal Justice Section, 150 East Gay
Street, 16th Floor, Columbus, Ohio 43215.

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
“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

of

pretrial

motion

3

by

failing

to

timely

object

to

magistrate

judge’s

report

and

recommendation).

Even

when

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 objections to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

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

Date: October 2, 2014

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

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to