Kathy Thomas v. Dorothy Arn

JOHNSTONE, District Judge.

Petitioner, Kathy Thomas, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for post conviction relief from her Ohio murder conviction for the death of her common law husband, Reuben Daniels. At her trial, Thomas alleged that she shot him in self defense. The evidence at trial established that the decedent was a violent man who had beaten Thomas on a number of occasions, including just before the shooting. In support of her defense, Thomas attempted to offer the testimony of a social worker as an expert witness on “battered wife syndrome.” The trial court voir dired the witness, found him unqualified, and held his testimony inadmissible.

On appeal, the Ohio Court of Appeals reversed Thomas’s conviction on this issue; however, this ruling was overturned by the Ohio Supreme Court and her conviction reinstated. State v. Thomas, 17 O.Op.2d 397 (Ohio App.1980), reversed, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981). Thomas exhausted all state relief before filing her petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio, Eastern Division.

Thomas’s petition was referred to a magistrate under 28 U.S.C. § 636(b)(1)(B). The magistrate filed his report and recommended that the petition be denied on May 11, 1982. Title 28 of the United States Code, Section 636(c), provides that Thomas had ten days within which to file written objections, if any, to the magistrate’s report. Thomas, represented by counsel, filed a motion for an extension of time to file objections to the report. The motion was granted and Thomas given until June 15, 1982. Thomas, however filed no objections. On September 3, 1982, the district court, Contie, J., considered the record de novo and the recommendation of the magistrate. The court denied the petition of Thomas for a writ of habeas corpus on the same grounds enunciated by the magistrate. From this judgment Thomas filed a timely notice of appeal.

Jurisdiction over the parties and subject matter is appropriate pursuant to 28 U.S.C. § 2241. The court, however, faces the threshold issue raised by the respondent of whether Thomas waived her right to appeal due to her failure to file objections to the report and recommendation of the magistrate.

In United States v. Walters, 638 F.2d 947 (6th Cir.1981), this court held that “... a party shall file objections [to a magistrate’s report] with the district court or else waive right to appeal.” Id. at 950. But see Britt v. Simi Valley Unified School District, 708 F.2d 452, 453, 454 (9th Cir.1983). The holding in Walters, announced over a year before the report in this case was filed, was given prospective application, and accordingly, is applicable to this action. As required by Walters, the report at issue here contained a warning to the parties that failure to file objections within ten days would result in a waiver of the right to appeal the judgment of the district court.

Careful examination of the record reveals that Thomas failed to file written objection to the report and recommendation of the magistrate that her habeas corpus petition be dismissed by the district court. Under such circumstances, Thomas waived further appeal as compelled by this court’s interpretation of 28 U.S.C. § 636(b)(1) in United States v. Walters, 638 F.2d 947. Accordingly, the judgment of the United States District Court for the Northern District of Ohio, Eastern Division, dismissing this petition for a writ of habeas corpus is AFFIRMED.