Waller vs. Warden Terry Tibbals
ENTRY AND ORDER OVERRULING OBJECTIONS 25 32 ADOPTING REPORT AND RECOMMENTATIONS 22 AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS 27 DENYING PLAINTIFF'S GROUNDS FOR RELIEF AND DISMISSING PETITIONER'S PETITION, DENYING PETITIONER'S REQUESTED CERTIFICATE OF APPEALABILITY ON BOTH GROUNDS, TERMINATING SAID CASE ON THE COURT'S DOCKET. Signed by Judge Thomas M. Rose on 1-19-2017. (de)(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 AT DAYTON
Case No. 3:15-cv-310
TERRY TIBBALS, Warden
London Correctional Inst,
JUDGE THOMAS M. ROSE
ENTRY AND ORDER OVERRULING OBJECTIONS (DOC. 25 AND 32) ADOPTING
REPORT AND RECOMMENTATIONS (DOC. 22) AND SUPPLEMENTAL REPORT AND
RECOMMENDATIONS (DOC. 27) DENYING PLAINTIFF’S GROUNDS FOR RELIEF
AND DISMISSING PETITIONER’S PETITION, DENYING PETITIONER’S
REQUESTED CERTIFICATE OF APPEALABILITY ON BOTH GROUNDS,
TERMINATING SAID CASE ON THE COURT’S DOCKET
This matter comes before the Court pursuant to the Petitioner’s Objections (Doc. 25 and 32)
to the Magistrate Judge’s Report and Recommendations (Doc. 22) and Supplemental Report and
Recommendations (Doc. 27).
The Court has reviewed the comprehensive findings of the Magistrate Judge in both his
original Report and Recommendations (Doc. 22) and his Supplemental Report and
Recommendations (Doc. 27) as well as the Petitioner’s Objections (Doc. 25 and 32). Pursuant to
28 U.S.C. Section 636(b) and Fed. R. Civ. P. 72(b) this District Judge has made a de novo review of
the record in this case and upon consideration of the foregoing, the Court finds the Objections (Doc.
25 and 32) are not well taken and hereby OVERRULED.
Petitioner’s attorney’s failure to preserve the jury instruction issue was apparent on the
record. Although Petitioner was able to raise this claim of ineffective assistance of trial counsel in
a petition for post-conviction relief under Ohio Revised Code Section 2952.21, he made no claim
that counsel was ineffective in failing to object to the jury instructions, nor did he appeal when his
trial court denied his post-conviction petition and therefore forfeited this claim for ineffective
assistance of trial counsel as an excusing cause at this point.
Accordingly, the Magistrate Judge’s Report and Recommendations (Doc. 22) and
Supplemental Report and Recommendations (Doc. 27) are ADOPTED in their entirety.
It is ORDERED and ADJUDGED that the Petitioner’s Petition is DISMISSED WITH
PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner
should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that
any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma
pauperis. This matter is ORDERED terminated upon the docket records of the United States
District Court for the Southern District of Ohio, Western Division at Dayton.
IT IS SO ORDERED.
January 19, 2017
*s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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