Mayes v. Warden, Ohio Department of Rehabilitation and Correction

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

DERRICK E. MAYES,

Petitioner, Case No. 3:22-cv-313

vs.

WARDEN, Chillicothe District Judge Michael J. Newman Correctional Institution, Magistrate Judge Peter B. Silvain, Jr.

Respondent. ______________________________________________________________________________

ORDER: (1) DENYING PETITIONER’S MOTION IN OPPOSITION AND OVERRULING PETITIONER’S OBJECTIONS (Doc. No. 12) TO THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION; (2) ADOPTING THE REPORT AND RECOMMENDATION (Doc. No. 11); (3) DISMISSING WITH PREJUDICE THE PETITION FOR A WRIT OF HABEAS CORPUS (Doc. No. 1); (4) DENYING ANY REQUESTED CERTIFICATE OF APPEALABILITY; (5) CERTIFYING THAT AN APPEAL OF THIS ORDER WOULD BE OBJECTIVELY FRIVOLOUS AND FINDING THAT PETITIONER SHOULD BE DENIED IN FORMA PAUPERIS STATUS ON APPEAL; (6) AND TERMINATING THIS CASE ON THE DOCKET ______________________________________________________________________________

Petitioner Derrick E. Mayes, an inmate in state custody at the Chillicothe Correctional Institution in Chillicothe, Ohio, brings this case pro se seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Doc. No. 1. This case is before the Court upon the Report and Recommendation of United States Magistrate Judge Peter B. Silvain, Jr. (Doc. No. 11), to whom this case was referred pursuant to 28 U.S.C. § 636(b). Judge Silvain recommends that this Court deny Petitioner’s single ground for relief as barred by procedural default and, alternatively, as seeking relief not cognizable in this habeas corpus case. Doc. No. 11 at PageID 792-801. Petitioner responds with a motion in opposition (Doc. No. 12), which the Court liberally construes in his favor as raising objections to the Report and Recommendations.1 Doc. No. 12. Upon careful de novo review of the foregoing—including Petitioner’s objections—as required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court determines that Judge Silvain’s Report and Recommendation applies the correct law, is well reasoned, and should be ADOPTED.

Accordingly, Petitioner’s motion in opposition is DENIED; his objections are OVERRULED; the Report and Recommendation is ADOPTED; and his petition for a writ of habeas corpus is DISMISSED with prejudice. Petitioner is DENIED any requested certificate of appealability, and the Court hereby CERTIFIES to the United States Court of Appeals for the Sixth Circuit that an appeal of this Order would be objectively frivolous and, therefore, Petitioner should not be permitted to proceed in forma pauperis. IT IS SO ORDERED. June 25, 2024 s/Michael J. Newman Hon. Michael J. Newman United States District Judge

1 Pro se filings are liberally construed and “however inartfully pleaded, must be held to less stringent standards than formal pleadings.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The undersigned applies this liberal standard in the present case.