Gonzalez v. Tibbals

Full title: EDGAR GONZALEZ, Petitioner, v. TERRY A. TIBBALS, WARDEN, Respondent.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

Date published: Jan 13, 2014

CASE NO. 1:13-CV-00014 (N.D. Ohio Jan. 13, 2014)

Opinion

CASE NO. 1:13-CV-00014

01-13-2014

EDGAR GONZALEZ, Petitioner, v. TERRY A. TIBBALS, WARDEN, Respondent.

JAMES S. GWIN

OPINION & ORDER

[Resolving Doc. Nos. 1 & 5]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

On January 3, 2013, Petitioner Gonzalez filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 seeking relief for alleged constitutional violations that occurred during his jury trial and sentencing hearing in the Cuyahoga County Court of Common Pleas.¹ Under Local Rule 72.2, the Court referred the petition to Magistrate Judge George J. Limbert for a Report and Recommendation. On July 22, 2013, Petitioner filed a pro se motion to stay the habeas petition in abeyance until he exhausted his state remedies.²

1 Doc. 1.

2 Doc. 5.

On November 27, 2013, Magistrate Judge Limbert recommended that this Court deny Petitioner's pro se motion for a stay and abeyance and dismiss with prejudice Petitioner's petition for a writ of habeas corpus.³ The Court ADOPTS the Magistrate Judge's Report and Recommendation, DENIES Petitioner's motion for a stay and abeyance, and DISMISSES WITH PREJUDICE Petitioner's writ of habeas corpus.

3 Doc. 7.

The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a Report and Recommendation to which the parties have made an objection.⁴ Parties must file any objections to a Report and Recommendation within fourteen days of service.⁵ Failure to object within that time waives a party's right to appeal the magistrate judge's recommendation.⁶ Absent objection, a district court may adopt the Magistrate Judge's report without review.⁷ However, this Court has conducted its own review and agrees with the conclusions of the Magistrate Judge.

4 28 U.S.C. § 636(b)(1).

5 Fed. R. Civ. P. 72(a).

6 See Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

7 Thomas, 474 U.S. at 149.

Accordingly, the Court ADOPTS in whole Magistrate Judge Limbert's Report and Recommendation and incorporates it fully herein by reference. The Court DENIES Petitioner's motion for a stay and abeyance, and further DISMISSES WITH PREJUDICE Petitioner's writ of habeas corpus. Moreover, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and no basis exists upon which to issue a certificate of appealability.⁸

8 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
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IT IS SO ORDERED.

__________________________

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE