Opinion
Case Nos. 2:09-cv-494 and 2:09-cv-502.
February 1, 2011
OPINION AND ORDER
On November 29, 2010, the Magistrate Judge issued a Report and Recommendation recommending that the instant consolidated petition under 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, Petitioner's objections (Doc. 15) are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner objects to the Magistrate Judge's recommendation of dismissal of his claims as procedurally defaulted. Petitioner argues that the Ohio Supreme Court's denial of his motion for a delayed appeal failed to enforce the State's procedural bar. Also, he states it was through no fault of his own that his appeal was untimely, because he attempted to file a timely appeal, but it was returned to him for failing to comply with the rules of the Ohio Supreme Court.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons set forth in the Magistrate Judge's Report and Recommendation, Petitioner's objections are overruled. Petitioner's failure to file a timely appeal that complied with the rules of the Ohio Supreme Court does not constitute cause for his procedural default. Further, in view of the United States Court of Appeals for the Sixth Circuit's decision in Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004), his argument that the Ohio Supreme Court's denial of his motion for delayed appeal fails the test set forth under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), likewise is not persuasive.
Therefore, Petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.