Opinion
CASE NO. 1:09CV2849.
July 28, 2010
MEMORANDUM OF OPINION AND ORDER
Before the Court is the Report and Recommendation of Magistrate Judge William H. Bayam issued June 29, 2010 ("R R"). ( Doc #: 12.) Petitioner Derrick Castleberry has filed a 28 U.S.C. § 2254 petition for writ of habeas corpus seeking relief from a 2007 conviction and 15-year prison sentence for violating terms of his parole ("Petition"). ( Doc #: 1.) In his petition, Castleberry alleges insufficient evidence, ineffective assistance of counsel, and ineffective assistance of appellate counsel. On April 13, 2010, Respondent filed a Motion to Dismiss the petition as time barred ("Motion"). ( Doc #: 9.)
After reviewing the Petition, the Motion and Petitioner's Response (Doc #: 11) and the record, the Magistrate Judge issued an R R concluding that Otto's petition is time barred and recommending that the Court dismiss the Petition, in its entirety, with prejudice. The one-year statute of limitations established by the AEDPA began to run April 25, 2008. It was tolled on April 13, 2009, when Petitioner moved to file a delayed appeal, until June 3, 2009, when the Ohio Supreme Court denied his motion. This left only 9 days, but Otto did not file his petition until December 4, 2009, or approximately seven months after the one-year limitation period had expired. Petitioner has not disputed this calculation, nor has he directly advanced either a direct claim to equitable tolling or a claim of actual innocence.
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) (2009) (emphasis added). Here, four weeks haves elapsed since the R R was issued, and Otto has not filed an objection or a request for an extension to file one.
The failure to timely file written objections to a Magistrate Judge's R R constitutes a waiver of a de novo determination by the district court of an issue covered in the report. Thomas v. 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); Wibly v. Astrue, No. 4:09 CV 1248; 2010 WL 2802711 at *1 (N.D. Ohio Jul. 14, 2010).
The Court has reviewed the Magistrate Judge's thorough and well-written R R ( Doc #: 12) and hereby ADOPTS it. Accordingly, the Motion ( Doc #: 9) is GRANTED and the Petition ( Doc #: 1) is DISMISSED WITH PREJUDICE. IT IS SO ORDERED.