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Welly v. Ohio, 3:17CV600. (2018)

Court: District Court, N.D. Ohio Number: infdco20181220g14 Visitors: 23
Filed: Dec. 20, 2018
Latest Update: Dec. 20, 2018
Summary: MEMORANDUM OF OPINION AND ORDER BENITA Y. PEARSON , District Judge . Pro se Petitioner Eric J. Welly filed a Petition for a Writ of Habeas Corpus 1 pursuant to 28 U.S.C. 2254 (ECF No. 1), alleging three (3) grounds for relief which challenge his conviction and sentence in the Seneca County Court of Common Pleas, Case No. 14-CR-0193. A Seneca County Grand Jury indicted Petitioner on one count of rape of a child less than ten years of age in violation of Ohio Rev. Code 2907.02(A)(
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MEMORANDUM OF OPINION AND ORDER

Pro se Petitioner Eric J. Welly filed a Petition for a Writ of Habeas Corpus1 pursuant to 28 U.S.C. § 2254 (ECF No. 1), alleging three (3) grounds for relief which challenge his conviction and sentence in the Seneca County Court of Common Pleas, Case No. 14-CR-0193. A Seneca County Grand Jury indicted Petitioner on one count of rape of a child less than ten years of age in violation of Ohio Rev. Code § 2907.02(A)(1)(b), (B). ECF No. 7-1 at PageID #: 74-75. Petitioner initially pleaded not guilty. Id. at PageID #: 76-77. Later, Welly, through counsel, filed a plea of not guilty and not guilty by reason of insanity. Id. at PageID #: 78-79. After court-ordered competency and sanity evaluations, the court found Petitioner competent to stand trial. Id. at PageID #: 82-83. The court proceeded with arraignment, and Petitioner restated his plea of not guilty. Id. at PageID #: 82.

On November 17, 2014, Petitioner changed his plea from not guilty to guilty of the lesser included offense of rape, removing reference to the victim's age. Id. at ECF No. 84-87. The court advised Petitioner of his rights, his potential sentence, and accepted his plea of guilty. Id. at PageID #: 88-90. Petitioner was sentenced to a prison term of 25 years to life. Id.at PageID #: 89. After unsuccessfully seeking relief in state court, Petitioner filed his habeas petition in federal court.

The case was referred to Magistrate Judge Thomas M. Parker for preparation of a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). On November 20, 2018, the magistrate judge issued a Report and Recommendation (ECF No. 11). In his report, the magistrate judge recommends that the Court deny the habeas petition for the following reasons: (1) Ground One is non-cognizable on habeas review, procedurally defaulted, and lacks merit; and (2) Grounds Two and Three are non-cognizable on habeas review and fail on the merits. Id.

Fed. R. Civ. P. 72(b)(2) provides that objections to a report and recommendation must be filed within 14 days after service. Objections to the Report were due on December 4, 2018.2 Neither party has timely filed any such objections. The Court must assume that the parties are satisfied with the magistrate judge's recommendations. Any further review by this Court would be a duplicative and inefficient use of the Court's limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

Accordingly, the Report and Recommendation of the magistrate judge is hereby adopted. Eric J. Welly's Petition for a Writ of Habeas Corpus is dismissed. ECF No. 1. 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.

FootNotes


1. Petitioner sued the State of Ohio. He should have sued Alan J. Lazaroff, Warden of the Mansfield Correctional Institution, where Petitioner is currently incarcerated. Warden Lazaroff filed a return of writ in response to Petitioner's petition. ECF No. 7.
2. Under Fed. R. Civ. P. 6(d), three days must be added to the fourteen-day time period because Petitioner was served a copy of the Report by mail. See Thompson v. Chandler, 36 F. App'x 783, 784 (6th Cir. 2002).
Source:  Leagle

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