Jones v. Sheldon

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

LEVOYD JONES, ) Case No. 3:21-cv-01767 ) Petitioner, ) Judge J. Philip Calabrese ) v. ) Magistrate Judge ) Jonathan D. Greenberg WARDEN ED SHELDON, ) ) Respondent. ) )

ORDER In this habeas action, the Magistrate Judge submitted a Report and Recommendation that the Court deny Petitioner Levoyd J ones’s motion for summary judgment. (ECF No. 16.) in this habeas action. In the Report and Recommendation, the Magistrate Judge summarized the factual and procedural history of the case. (Id.) In short, Petitioner moved for summary judgment on ground that Respondent Ed Sheldon failed timely to file his return of writ as the Magistrate Judge ordered. According to the Magistrate Judge, however, Respondent timely filed his return of writ, and Petitioner simply moved for summary judgment too early. (Id.) The Report and Recommendation stated that any objections were due fourteen days after service and advised Petitioner that failure to timely object may waive the right to appeal the Court’s order. (Id.) The Report and Recommendation was filed on the docket on April 8, 2022 and mailed to Petitioner the same day. Nonetheless, Petitioner has failed to object to the Magistrate Judge’s Report and Recommendation. Under the law of this Circuit, “failure to object to a magistrate judge’s Report and Recommendation results in a waiver of appeal on that issue as long as the magistrate judge informs parties of that potential waiver.” United States v.

Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (emphasis added); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S. 140, 152 (1985) (holding that the Sixth Circuit’s waiver rule is within its supervisory powers and “[t]here is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate’s report to which no objections are filed”).

Recently, the Sixth Circuit clarified this rule: failure to object is not a waiver, but a forfeiture. Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (“We clarify that forfeiture, rather than waiver, is the relevant term here.”). This is so because “[w]aiver is different than forfeiture.” United States v. Olando, 507 U.S. 725, 733 (1993); Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring) (noting the Supreme Court’s cases “often used [waiver and forfeiture] interchangeably,” but that “[t]he two are really not the same.”). This difference

matters because forfeited issues may, in certain circumstances, nevertheless be considered on appeal.” Berkshire, 928 F.3d at 530 (citing Harris v. Klare, 902 F.3d 630, 635–36 (6th Cir. 2018)). In any event, the time for filing objections to the Report and Recommendation has passed. Petitioner neither objected, nor provided some legitimate reason why he failed to do so. Further, upon the Court’s independent review of the record, there does not appear to be clear error in the Magistrate Judge’s Report and Recommendation. Therefore, the Court ADOPTS the Report and Recommendation (ECF No. 16) and DENIES Petitioner’s motion for summary judgment. SO ORDERED. Dated: May 23, 2022

J. Philip Calabrese United States District Judge Northern District of Ohio