The opinion of the court was delivered by: Honorable Stephen J. Murphy, III
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION (docket 15)
Before the Court is the Report and Recommendation of the Honorable Paul J. Komives, United States Magistrate Judge. The magistrate judge served the Report and Recommendation on the parties on September 25, 2009. The petitioner filed objections.*fn1 For the reasons stated below, the Court overrules the petitioner's objections and adopts the magistrate judge's Report and Recommendation.
The Court's standard of review for a magistrate judge's Report and Recommendation depends upon whether a party files objection. If a party objects to portions of the Report and Recommendation, the Court reviews those portions de novo. 28 U.S.C. §636(b)(1)(C). De novo review in these circumstances requires at least a review of the evidence before the magistrate judge; the Court may not act solely on the basis of a magistrate judge's report and recommendation. See 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997); see also Hill v. Durion Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge." 28 U.S.C. §636(b)(1).
The Court has conducted a de novo review of the record and finds that the petitioner's objections are without merit. The reasoning of the magistrate judge in the Report and Recommendation is sound and correct. In particular, the record establishes that petitioner's plea was valid, voluntary and intelligent under federal constitutional standards and petitioner's right to due process of law was not violated by the trial court's failure to sua sponte hold a hearing on petitioner's competence before accepting the plea. The record therefore provides no basis for according federal habeas relief.
Accordingly, after having reviewed the magistrate judge's Report and Recommendation, the petitioner's objections, and the applicable portions of the record, IT IS HEREBY ORDERED that petitioner's motion for extension of time to file response [docket entry no. 16] is GRANTED.
IT IS FURTHER ORDERED that petitioner's objections [docket entry no. 17] to the Report and Recommendation are OVERRULED.
IT IS FURTHER ORDERED that the Report and Recommendation [docket entry no. 15] is ACCEPTED AND ADOPTED as the opinion of this Court.
IT IS FURTHER ORDERED that petitioner's application for the writ of habeas corpus is DENIED.
STEPHEN J. MURPHY, III United States ...