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In Smith, the fact that the petitioner took no action to seek an appeal until approximately five months after his appellate counsel notified him of the appellate court's decision meant that this omission was not prejudicial to Smith, and so would not excuse the procedural default.
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CASE NO. 3:04CV7456.
January 18, 2007
MEMORANDUM OF OPINION AND ORDER RE: DISMISSING PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS
Anthony D. Smith, Jr. filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, alleging three grounds for relief which challenge the constitutional sufficiency of his conviction and sentence for one count of aggravated robbery, in violation of Ohio Rev. Code § 2911.01, with a gun specification; one count of trafficking in cocaine, in violation of Ohio Rev. Code § 2925.03(A); and an additional count of trafficking in cocaine, with a major drug offender specification.
On September 22, 2004, the case was referred to Magistrate Judge James S. Gallas for preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). See Order (Doc. 4). On November 28, 2006, the Magistrate Judge submitted a Report and Recommendation (Doc. 10) recommending that the petition be denied and dismissed.
Fed.R.Civ.P. 72(b) provides that objections to a report and recommendation must be filed within ten (10) days after service, but neither party has filed any such objections. Therefore, the Court must assume that the parties are satisfied with the Magistrate Judge's recommendation. Any further review by this Court would be a duplicative and inefficient use of the Court's limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Accordingly, the Report and Recommendation of the Magistrate Judge is hereby adopted. Anthony D. Smith, Jr.'s Petition for a Writ of Habeas Corpus will be dismissed.
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 that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.