Mira v. Marshall, No. 85-3968

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore KENNEDY and MARTIN, Circuit Judges, and PECK; PER CURIAM
Citation806 F.2d 636
PartiesKeith A. MIRA, Petitioner-Appellant, v. Ronald C. MARSHALL, Respondent-Appellee.
Decision Date29 September 1986
Docket NumberNo. 85-3968

Page 636

806 F.2d 636
Keith A. MIRA, Petitioner-Appellant,
v.
Ronald C. MARSHALL, Respondent-Appellee.
No. 85-3968.
United States Court of Appeals,
Sixth Circuit.
Sept. 29, 1986.

Page 637

Paul Mancino Jr., Cleveland, Ohio, for petitioner-appellant.

Cordelia A. Glenn, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before KENNEDY and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

Petitioner-appellant Keith A. Mira ("petitioner") appeals the District Court's denial of his petition for a writ of habeas corpus. We affirm the District Court's judgment.

Petitioner was indicted by the January, 1982 term of the Hancock County, Ohio, Grand Jury, which charged him with "committing a theft offense as defined in Section 2913.01 of the Revised Code, hav(ing) under his control a deadly weapon as defined in Section 2923.11 of the Revised Code, to-wit: a shot gun." Joint Appendix at 24. A jury found petitioner guilty as charged in the indictment. The trial court sentenced petitioner to a prison term of 7 to 25 years.

On March 7, 1985, after exhausting all of his state remedies, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Ohio. On August 8, 1985, Magistrate James Carr filed a report with the District Court recommending denial of the petition. On October 17, 1985, the District Court issued an order adopting the report of the Magistrate and denying the petition. On November 21, 1985, the District Court denied petitioner's motion for certificate of probable cause. This Court granted the certificate on January 30, 1986. This appeal followed.

I. DE NOVO REVIEW

Petitioner argues that the District Court erred in not granting de novo review of his objections to the Magistrate's report. Petitioner made a blanket objection to the Magistrate's report and recommendation, stating: "The undersigned objects to each and every finding of the Magistrate and requests that the court conduct a de novo review of the record." Joint Appendix at 118. Petitioner then stated somewhat more specific objections to the District Court's failure to appoint counsel, and the state court's instructions to the jury on circumstantial evidence and on the elements of the offense of theft under Ohio law, concluding with: "Petitioner also objects to the other findings and recommendations of the Magistrate and requests that the court conduct a de novo review of the record." Joint Appendix at 121. The District Court adopted the Magistrate's report as the order of the Court, noting that: "The substance of [petitioner's] objection already has been addressed by the Magistrate. Further, [petitioner] fails to raise any new issues which might properly be addressed by this Court. Thus, [petitioner's] objections do not warrant de novo review." Joint Appendix at 123.

Title 28 U.S.C. Sec. 636(b)(1) provides for de novo review of those portions of a magistrate's report or recommendations to which objections have been made by any party. However, the district court need not provide de novo review where the objections are "[f]rivolous, conclusive or general." Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982). The parties have "the duty to pinpoint those portions of the magistrate's report that the district court must specially consider." Id. at 410 (footnote omitted); see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

Furthermore, the only issues raised by petitioner are legal ones. "[D]e novo determination refers only to matters involving disputed facts." Gioiosa v. United States, 684 F.2d 176, 179 (1st Cir.1982); see

Page 638

also United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th Cir.1980). Thus, petitioner was not harmed by the District Court's failure to grant de novo review.

II. FAILURE TO APPOINT COUNSEL

In filing his petition for writ of habeas corpus, petitioner moved that he be granted leave to proceed in forma pauperis and that counsel be appointed to represent him. The District Court granted the motion to proceed in forma pauperis, but did not rule on the motion for appointment of counsel for petitioner, who was represented by counsel. Petitioner also requested appointment of counsel in the course of his objections to the Magistrate's report; the Court did not rule on this matter. Petitioner contends that the District Court erred in failing to appoint counsel to represent him in these proceedings.

The decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due process so require. See 18 U.S.C. Sec. 3006A(g); Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir.1983); Norris v. Wainwright, 588 F.2d 130, 133 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); LaClair v. United States, 374 F.2d 486, 489 (7th Cir.1967). Petitioner makes no showing...

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2116 practice notes
  • Vance v. Warden, Noble Corr. Inst., CASE NO. 2:19-CV-00687
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 7, 2019
    ...is within the discretion of the court and is required only where the interests of justice or due process so require." Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986) (citations omitted). The appointment of counsel is mandatory only where the record indicates that an evidentiary hearing ......
  • Hernandez v. Colvin, Case No: 4:13-CV-67 (Mattice/Carter)
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • March 20, 2015
    ...need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir....
  • Keenan v. Bagley, CASE NO. 1:01 CV 2139
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 24, 2012
    ...indictment is not cognizable on federal collateral review." Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002); see also Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986) ("The indictment here had sufficient information to provide petitioner with adequate notice and the opportunity to defend......
  • Harris v. Gordy, Civil Action Number: 5:15-cv-01112-VEH-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • November 1, 2017
    ...that the convicting court was deprived of jurisdiction." Heath v. Jones, 863 F.[2]d 815, 821 (11th Cir. 1989); see also Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986) ("An indictment which fairly but imperfectly informs the accused of the offense for which he is to be tried does not gi......
  • Request a trial to view additional results
2091 cases
  • Vance v. Warden, Noble Corr. Inst., CASE NO. 2:19-CV-00687
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 7, 2019
    ...is within the discretion of the court and is required only where the interests of justice or due process so require." Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986) (citations omitted). The appointment of counsel is mandatory only where the record indicates that an evidentiary hearing ......
  • Hernandez v. Colvin, Case No: 4:13-CV-67 (Mattice/Carter)
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • March 20, 2015
    ...need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir....
  • Keenan v. Bagley, CASE NO. 1:01 CV 2139
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 24, 2012
    ...indictment is not cognizable on federal collateral review." Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002); see also Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986) ("The indictment here had sufficient information to provide petitioner with adequate notice and the opportunity to defend......
  • Harris v. Gordy, Civil Action Number: 5:15-cv-01112-VEH-JEO
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • November 1, 2017
    ...that the convicting court was deprived of jurisdiction." Heath v. Jones, 863 F.[2]d 815, 821 (11th Cir. 1989); see also Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986) ("An indictment which fairly but imperfectly informs the accused of the offense for which he is to be tried does not gi......
  • Request a trial to view additional results

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