United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION
HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE
Before
the Court is the report and recommendation
(“R&R”) of the Magistrate Judge in the
above-entitled actions, filed May 17, 2019. (No. 1:16-cv-1931
[“Nunez I”], Doc. No. 21; No.
1:17-cv-2325 [“Nunez II”], Doc. No. 17.)
Under the relevant statute:
[. . .] Within fourteen days after being served with a copy,
any party may serve and file written objections to such
proposed findings and recommendations as provided by rules of
court. A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.
28 U.S.C. § 636(b)(1)(C).[2] In these cases, the fourteen-day
period has elapsed and no objections have been filed. The
failure to file written objections to a Magistrate
Judge's report and recommendation constitutes a waiver of
a de novo determination by the district court of an issue
covered in the report. Thomasv.Arn, 728 F.2d 813
(6th Cir. 1984), aff=d, 474 U.S. 140 (1985); see
United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
After
the R&R was filed, on May 30, 2019, petitioner filed an
untimely first supplemental traverse in Nunez
II.[3] The filing did not reference the R&R
and did not even mention the grounds for relief raised in
Nunez I. The Court has reviewed the Magistrate
Judge's report and recommendation relative to those
grounds and ADOPTS the same. Accordingly,
the Court dismisses Nunez I.
Likewise,
the untimely supplemental traverse fails to address the
Magistrate Judge's recommended disposition of
petitioner's grounds raised in Nunez II.
However, it does generally address the arguments raised in
respondent's supplemental answer to the Nunez II
petition. The Court has no duty to construct objections for
petitioner, nor has it the responsibility of treating
petitioner's untimely traverse as a properly filed
objection to specific findings contained in the R&R.
See generally Powell v. United States, 37 F.3d 1499
(Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994)
(“Any report and recommendation by a magistrate judge
that is dispositive of a claim or defense of a party shall be
subject to de novo review by the district court in light of
specific objections filed by any party.”)
(emphasis added); 28 U.S.C. § 636(b)(1)(C). Nonetheless,
out of an abundance of caution, the Court has reviewed the
supplemental traverse and has considered the arguments raised
therein relative to the findings and conclusions contained in
the R&R.
The
Court determines that the supplemental traverse fails to
suggest any error in the Magistrate Judge's conclusions
that the first two grounds for relief are procedurally
defaulted, and that the third ground for relief-addressing a
state court jury instruction-is not cognizable on federal
habeas review. Accordingly, the Court ADOPTS
the R&R relative to the grounds raised in Nunez
II, and DISMISSES this action, as
well.[4]
Further,
the Court CERTIFIES 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.
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Notes:
[1] Sean Bowman is the current warden of
Toledo Correctional Institution and as such is the proper
party respondent. Rule 2(a) of the Rules Governing Section
2254 Cases.
[2] Moreover, the R&R advised the
parties that any objections to the report were required to be
filed within 14 days of the issuance of the R&R.
(Nunez I, Doc. No. 21 at 2065; Nunez II,
Doc. No. 17 at 253.)
[3] Petitioner filed a motion requesting
an extension of 30 additional days in which to file his
supplemental traverse. (Nunez II, Doc. No. 11.)
Noting the numerous delays in the prosecution of these habeas
petitions, the Magistrate Judge granted the motion, in part,
and directed petitioner to file his supplemental traverse by
May 13, 2019. (Id., Doc. No. 12.) At that time,
petitioner was advised that no further extensions would be
granted. (Id. at 106.) Notwithstanding this warning,
petitioner ...