Judge Timothy S. Black
Judge Timothy S. Black
Magistrate Judge Michael R. Merz
DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 16)
This case is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Michael R. Merz. Pursuant to such reference, the Magistrate Judge reviewed the pleadings filed with this Court and, on November 21, 2016, submitted a Report and Recommendations. (Doc. 16). The Petitioner filed objections. (Doc. 17).
For the reasons stated in the Magistrate Judge's Report and Recommendations (Doc. 16), Petitioner's objections (Doc. 17) are OVERRULED. Specifically, Petitioner only raises one ground for relief: that his trial attorney failed to request a presentence investigation report prior to sentencing. Petitioner's objection that mitigating circumstances would have reduced his sentence is speculative. This Court has no way of knowing what would have been in a presentence investigation report. Moreover, Petitioner could have submitted mitigating facts in a petition for post-conviction relief in the trial court, but he failed to do so. The Court notes that the grand jury returned an indictment with capital specifications and Petitioner pleaded guilty to murdering his own son. Even with these facts, he received the second-lowest sentence possible under the plea agreement, life with parole eligibility after twenty-five years. --------
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court does determine that such Report and Recommendations should be and is hereby adopted in its entirety.
Accordingly:
1. The Petition (Doc. 1) is
DISMISSED WITH PREJUDICE;
2. Petitioner is denied a certificate of appealability because an appeal would be objectively frivolous and therefore he is not permitted to proceed in forma pauperis; and
3. The Clerk shall enter judgment accordingly, whereupon this case is TERMINATED on the docket of this Court.
IT IS SO ORDERED. Date: 1/3/17
/s/_________
Timothy S. Black
United States District Judge