Dunlap v. Warden Franklin Medical Center

Filing 7

ORDER granting 3 Report and Recommendations. The Court declines to issue a certificate of appealability. Signed by Judge Gregory L. Frost on 11/21/14. (kn)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ERIC W. DUNLAP, Petitioner, Civil Action 2:14-cv-1991 Judge Frost Magistrate Judge King vs. WARDEN, FRANKLIN MEDICAL CENTER, Respondent. ORDER Petitioner, a state prisoner who was convicted in March 1992 for felonious sexual penetration, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petition, ECF 2. On October 20, 2014, the United States Magistrate Judge recommended that the Petition be dismissed, pursuant to the provisions of Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts, for failure to state a claim for habeas corpus relief. Order and Report and Recommendation, ECF 3. This matter is now before the Court on petitioner’s objection to that recommendation. Objection, ECF 5. The Court will consider the matter de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). The Petition alleges simply, No substantive law filed in this case or otherwise invoked. No record or substantive law for state or federal jurisdiction. There is no due process of law for a criminal state conviction. Nor any public record of any state offense. Id. at PAGEID# 8. As noted by the Magistrate Judge, the Petition contains no facts in support of petitioner’s claim that he is in 1 custody in violation of the Constitution or laws of the United States. In his objections, petitioner contends that “no substantive law was invoked, or shown by the Respondents.” Objection, PageID# 41. Accordingly, petitioner argues, “It is a fact of record it [sic] is a real possibility of Fourth and Fourteenth Amendment constitutional error of record.” Id. (emphasis in original). Petitioner argues that “it is upon the Respondent to prove or disprove the State of Ohio’s lawful interest.” Id. The Petition, even liberally construed, alleges no facts in support of a claim that petitioner was convicted in violation of the Constitution or laws of the United States. See Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts (A habeas corpus petition must, among other things, “state the facts supporting each ground. . . .”). Simply put, the Petition does allege a basis for concluding that petitioner is entitled to relief, nor does it present 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). Petitioner’s objection to the Report and Recommendation is DENIED. AFFIRMED. The Report and Recommendation, ECF 3, is ADOPTED AND This action is DISMISSED. The Clerk is DIRECTED to enter FINAL JUDGMENT. Moreover, the Court DECLINES to issue a certificate of appealability. /s/ Gregory L. Frost Gregory L. Frost United States District Judge 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?