From Casetext: Smarter Legal Research

Salce v. Wilson

United States District Court, N.D. Ohio, Eastern Division
Jun 24, 2009
CASE NO. 3:08 CV 674 (N.D. Ohio Jun. 24, 2009)

Opinion

CASE NO. 3:08 CV 674.

June 24, 2009


Memorandum of Opinion and Order


This matter is before the Court upon the Report and Recommendation of Magistrate Judge Baughman (Doc. 13) which recommends dismissal of the Petition for Writ of Habeas Corpus pending before the Court. For the following reasons, the Report and Recommendation is ACCEPTED.

Introduction

Petitioner, Javier Salce, commenced this action with the filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge issued his Report and Recommendation recommending that the Petition be dismissed. Petitioner has failed to file objections to the Report and Recommendation. Standard of Review

Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides, "The judge must determine de novo any proposed finding or recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation." When no objections have been filed this Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. See Advisory Committee Notes 1983 Addition to Federal Rule of Civil Procedure 72.

Conclusion

This Court fully agrees with the reasoning and conclusions of the Magistrate Judge and, having found no clear error, completely adopts his factual and legal conclusions as its own and incorporates them herein by reference. Accordingly, for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is dismissed.

Furthermore, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c) provides:

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court determined that [t]o obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'
Id. at 483-4 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).

If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court's decision "debatable or wrong." Id. at 484. In instances where a claim is procedurally defaulted, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. (emphasis supplied).

For the reasons stated in the Report and Recommendation, the Court does not find that petitioner has made a substantial showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability.

IT IS SO ORDERED.


Summaries of

Salce v. Wilson

United States District Court, N.D. Ohio, Eastern Division
Jun 24, 2009
CASE NO. 3:08 CV 674 (N.D. Ohio Jun. 24, 2009)
Case details for

Salce v. Wilson

Case Details

Full title:Javier Salce, Petitioner, v. Julius Wilson, Warden, Respondent

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

Date published: Jun 24, 2009

Citations

CASE NO. 3:08 CV 674 (N.D. Ohio Jun. 24, 2009)

Citing Cases

Small v. Warden, Ross Corr. Inst.

This claim plainly lacks merit. Petitioner's appellate counsel was not required to advance issues he deemed…

Palmer v. Eberlin

This claim is plainly without merit. Petitioner's appellate counsel was not required to advance issues he…