United States District Court, S.D. Ohio, Eastern Division
ERIC R. WESTERFIELD, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
MICHAEL H. WATSON JUDGE.
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE
a state prisoner, brings this Petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons
that follow, the Undersigned RECOMMENDS that
the Court DISMISS this action pursuant to
Federal Rule of Civil Procedure 41(b) for failure to
November 3, 2017, Petitioner filed this pro se
§ 2254 Petition challenging his November 30,
2007, conviction after a jury trial in the Franklin County
Court of Common Pleas on rape. Petitioner indicates that he
is serving a sentence of life incarceration. He asserts that
he was denied the effective assistance of counsel, because
his attorney advised him to reject the plea offer of three to
six years (claim one); and that he was denied due process
because the State suppressed evidence regarding prior
allegations made by the alleged victim against her former
boyfriend (claim two). However, Petitioner has neither
submitted the $5.00 filing fee, nor has he submitted any
request to proceed in forma pauperis. On November 6,
2017, the Court issued an Order directing Petitioner
to submit the filing fee or a request to proceed in forma
pauperis within thirty days, advising him that the
failure to do so would result in the dismissal of this case.
(ECF No. 2.) To date, Petitioner has failed to do so.
Federal Rules of Civil Procedure may be used in habeas corpus
“to the extent that they are not inconsistent with any
statutory provisions or these rules. . . .” Rule 12,
Rules Governing Section 2254 Proceedings. The Court's
inherent authority to dismiss a plaintiff's action or
particular claims within an action with prejudice because of
his failure to prosecute is expressly recognized in Federal
Rule of Civil Procedure 41(b), which provides in pertinent
part: “If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to
dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this
subdivision (b) . . . operates as an adjudication on the
merits.” Fed.R.Civ.P. 41(b); Link v. Walbash R.
Co., 370 U.S. 626, 629-31 (1962). “This measure is
available to the district court as a tool to effect
management of its docket and avoidance of unnecessary burdens
on the tax-supported courts and opposing parties.”
Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir.
1999). “Rule 41(b) recognizes the power of the district
court to enter a sua sponte order of dismissal.”
Steward v. City of Jackson, Tenn., 9 Fed.Appx. 294,
296 (6th Cir. 2001) (citing Link, 370 U.S. 626 at
date, Petitioner has failed to respond to the Court's
November 6, 2017, Order. Further, the Order
cautioned Petitioner that, if he failed to comply, the Court
would assume that he had decided not to pursue the case, and
that he is not a pauper, and would assess the full amount of
the filing fee and dismiss the case for want of prosecution.
See Stough v. Mayville Cmty. Schs., 138 F.3d 612,
615 (6th Cir. 1998) (noting that “[p]rior notice, or
lack thereof, is . . . a key consideration” in whether
dismissal under Rule 41(b) is appropriate); see also
Steward v. City of Jackson, 9 Fed.Appx. 294, 296 (6th
therefore RECOMMENDED that the Court
DISMISS this action WITH
PREJUDICE under Rule 41(b).
party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14)
days, file and serve on all parties objections to the Report
and Recommendation, specifically designating this Report
and Recommendation, and the part in question, as well as
the basis for objection. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). Response to objections must be filed
within fourteen (14) days after being served with a copy.
parties are specifically advised that failure to object to
the Report andRecommendation will result
in a waiver of the right to de novo review by the
District Judge and waiver of the right to appeal the judgment
of the District Court. See, e.g., Pfahler v. Nat'l
LatexProd. Co., 517 F.3d 816, 829 (6th Cir.
2007) (holding that “failure to object to the
magistrate judge's recommendations constituted a waiver
of [the defendant's] ability to appeal the district
court's ruling”); United States v.
Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court's denial
of pretrial motion by failing to timely object to magistrate
judge's report and recommendation). Even when timely
objections are filed, appellate review of issues not raised
in those objections is waived. Robert v. Tesson, 507