Smith v. Foley, No. 1:2021cv01705 - Document 18 (N.D. Ohio 2023)
Court Description: Memorandum of Opinion and Order For the reasons set forth herein, the Court adopts the Report and Recommendation. ECF No. 15 . The Petition is dismissed as procedurally defaulted or, in the alternative, denied as being without merit. Additio nally, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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). Judge Benita Y. Pearson on 8/7/2023. (JLG)
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Smith v. Foley Doc. 18 Case: 1:21-cv-01705-BYP Doc #: 18 Filed: 08/07/23 1 of 2. PageID #: 444 PEARSON, J. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION BRANDON SMITH, Petitioner, v. WARDEN KEITH FOLEY, Respondent. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 1:21CV1705 JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER [Regarding ECF No. 15] On February 21, 2023, the assigned magistrate judge issued a Report and Recommendation suggesting that Petitioner Smith’s sole claim in his Petition for habeas relief is procedurally defaulted and without merit. See ECF No. 15. Ultimately, the Report and Recommendation urges the dismissal or denial of the petition for a writ of habeas corpus. The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a Report and Recommendation to which the parties have made an objection. 28 U.S.C. § 636(b)(1)(C). Parties must file any objections to a Report and Recommendation within fourteen days of service. Id.; Fed. R. Civ. P. 72(b)(2). Absent objections, a district court may adopt a magistrate judge’s report without review. See Thomas v. Arn, 474 U.S. 140, 149 (1985). Objections to the Report and Recommendation were due by March 7, 2023. None of the parties have filed an objection 1. Accordingly, the Court adopts the Report and Recommendation. 1 Petitioner filed a Motion for Extension of Time to File Objections until March 28, 2023. See ECF No. 16. Petitioner subsequently filed a Notice of Withdrawal of that motion on March 16, 2023. See ECF No. 17. Dockets.Justia.com Case: 1:21-cv-01705-BYP Doc #: 18 Filed: 08/07/23 2 of 2. PageID #: 445 (1:21CV1705) ECF No. 15. The Petition is dismissed as procedurally defaulted or, in the alternative, denied as being without merit. Additionally, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), 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. August 7, 2023 Date /s/ Benita Y. Pearson Benita Y. Pearson United States District Judge 2
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