Yuschak v. Sheldon ( 2020 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION TERRY M. YUSCHAK ) CASE NO. 1:19CV520 ) Petitioner, ) JUDGE DAN AARON POLSTER ) vs. ) OPINION AND ORDER ) WARDEN EDWARD SHELDON, ) ) Respondent. ) This case is before the Court on the Report and Recommendation of Magistrate Judge George J. Limbert (AR&R@). Doc #: 10. Petitioner filed a motion requesting a stay and abeyance of his Petition under 28 U.S.C. ' 2254. Doc #: 3. Alternatively, Petitioner requests dismissal of his ' 2254 petition without prejudice if the Court were to deny the stay and abeyance. Id. The Magistrate Judge recommends that the Court deny Petitioner’s motion for stay and abeyance of his ' 2254 petition, Doc #: 3, and, at Petitioner’s request, dismiss the ' 2254 because he has not exhausted Grounds Ten and Eleven in state court and they are not potentially meritorious in federal court. Doc #: 10. Under the relevant statute: Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. ' 636(b)(1) (emphasis added). In this case, the R&R was issued on January 16, 20 20, and it is now February 10, 2020. Twenty-five days have elapsed since the R&R was issued, and Petitioner has neither filed objections nor a request for an extension of time to file them. The failure to timely file written objections to an R&R constitutes a waiver of a de novo review by the district court of any issues covered in the R&R. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Despite the lack of objections, the Court has reviewed the Magistrate Judge=s thorough, well-written R&R, and agrees with the Magistrate Judge=s findings. Therefore, the Court ADOPTS the R&R, Doc #: 10. Accordingly, the Court DENIES petitioner’s motion requesting a stay and abeyance, Doc #: 3, and hereby DISMISSES WITHOUT PREJUDICE the ' 2254 Petition, Doc #: 1. IT IS SO ORDERED. /s/ Dan A. Polster February 10, 2020 Dan Aaron Polster United States District Judge 2