Opinion
CASE NO. 2:11-CV-500
03-27-2013
MICHAEL T. GRAVELY, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE MICHAEL R. MERZ
OPINION AND ORDER
On January 23, 2013, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus be dismissed. Petitioner filed Objections to the Magistrate Judge's Report and Recommendation. Doc. No. 17. In response, the Magistrate Judge issued a Supplemental Report and Recommendation. Doc. No. 20. Petitioner has filed Objections to the Magistrate Judge's Supplemental Report and Recommendation. Doc. No. 21. Respondent has filed a Response. Doc. No. 22. For the reasons that follow, Petitioner's Objections are OVERRULED. The Report and Supplemental Report and Recommendation are ADOPTED and AFFIRMED. This action is hereby DISMISSED.
In his Objections to both the original and supplemental Report and Recommendations, Petitioner objects solely to the Magistrate Judge's recommendation of dismissal on the merits of claims one and two, in which he asserts that the evidence was constitutionally insufficient to sustain his convictions on felonious assault and that he was denied a constitutionally fair trial because the trial court refused to sever the drug charges from the felonious assault charges. Petitioner again raises all of the same arguments he previously presented. For example, he complains of the lack of evidence indicating he was the shooter. He objects to the Magistrate Judge's conclusion that he failed to establish prejudice from the joinder of drug and felonious assault charges, arguing that the jury used evidence from the drug charges to establish his motive for shooting at police. He argues at length that the trial court improperly permitted joinder of these charges against him.
In response, Respondent argues that Petitioner's March 8, 2013, Objections should be stricken from the record as one day late. Additionally, Respondent argues that Petitioner has waived his right to de novo review by failing to raise the some arguments for the first time in his Objections to the Supplemental Report and Recommendation that he did not raise in his original objections. Alternatively, it is the position of the Respondent that Petitioner's Objections should be overruled.
Respondent has not filed a motion to strike and only mentions the untimeliness argument in his response to the Objections. Thus, the Court need not specifically grant or deny the request. Nevertheless, the Court notes that the filing was timely, as the Notice Regarding Objections specifically indicated that the period for objections was extended to seventeen days. See Supplemental Report and Recommendation, Doc. 20, PageID 1375).
The Court does not agree that Petitioner has waived his right to de novo review of matters raised in his Objections to the Supplemental Report and Recommendation. All of Petitioner's arguments in both sets of Objections are related to various aspects of the Magistrate Judge's conclusions on the merits of claims one and two.
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Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review of both the Magistrate Judge's original Report and Recommendation and Supplemental Report and Recommendation of dismissal of habeas corpus claims one and two on the merits. For the reasons already well detailed in the Report and Recommendation and Supplemental Report and Recommendation, Petitioner's arguments are not well taken. Petitioner's Objections are, therefore, OVERRULED.
The Report and Recommendation and Supplemental Report and Recommendation are ADOPTED and AFFIRMED. This action is hereby DISMISSED.
IT IS SO ORDERED.
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GEORGE C. SMITH
United States District Judge