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Gotshall v. Bracy

United States District Court, N.D. Ohio, Eastern Division

December 3, 2019

CHRIS H. GOTSHALL, Petitioner,
v.
WARDEN CHARMAINE BRACY, Respondent.

          MEMORANDUM OPINION AND ORDER

          DONALD C. NUGENT UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon the Report and Recommendation of Magistrate Judge Kathleen B. Burke. (ECF #27). The Report and Recommendation, issued on October 29, 2019 is hereby ADOPTED by this Court. Petitioner's Federal Habeas Corpus Petition under 28 U.S.C. § 2254 (ECF #1) is therefore DENIED.

         Procedural History

         On July 9, 2018, pro se Petitioner Chris H. Gotshall filed a Petition for a Writ of Federal Habeas Corpus under 28 U.S.C. § 2254 in its entirety. (ECF #1). On April 1, 2019, [1] Respondent, Warden, filed a Motion to Dismiss Petitioner's claim. (ECF #17). Petitioner and Respondent filed multiple replies. (ECF #21, 25).

         In his petition, Petitioner raises three arguments: (1) ineffective assistance of counsel at the trial court level; (2) prosecutor misconduct; and, (3) denial of his the right to a speedy trial. (ECF#1).

         In the Report and Recommendation, Magistrate Judge Kathleen B. Burke, evaluated the petition and determined that (1) it is untimely under 28 U.S.C. § 2244(d); and, (2) Petitioner foiled to demonstrate an entitlement to equitable tolling of the statute of limitations. (ECF #27).

         Standard of Review for a Magistrate Judge's Report and Recommendations

         The applicable standard of review of a magistrate judge's report and recommendation depends upon whether objections were made to that report. When objections are made to a report and recommendation of a magistrate judge, the district court reviews the case de novo. Fed. R. Civ. P. 72(b) states:

The district judge must determine de novo any part of the magistrate judge's dispositions that has been properly objected to. The district judge may accept, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

However, "when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's notes (citations omitted).

         The U.S. Supreme Court stated: "It does not appear that Congress intended to require district court review of magistrate judge's factual or legal conclusions, under a de novo or any other standard, when neither party objects to these findings." Thomas v. Am, MA U.S. 140, 150 (1985). Here, neither party objected to the magistrate judge's Report and Recommendation. Accordingly, this Court reviews the Report and Recommendation for a finding of clear error on the face of the record.

         Discussion

         This Court carefully reviewed the Report and Recommendation and agrees with the findings set forth therein. The Court finds Magistrate Judge Burke's Report and Recommendation to be thorough, well-written, well-supported, and correct.

         On May 6, 2015, a jury found Petitioner guilty of felonious assault and the trial court sentenced him to four years in prison. (ECF #11). Petitioner appealed and on May 23, 2016, the Eleventh district Court of Appeals affirmed the trial court's judgment. (ECF #11). Petitioner had forty-five (45) days from the May 23, 2016 date (July 7, 2016) to appeal the Eleventh Court of Appeals' judgment to the Ohio ...


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