Misenheimer v. Hobbs

Filing 18

ORDER adopting 16 Report and Recommendations as the Court's own; dismissing Mr. Misenheimer's 1 Petition for Writ of Habeas Corpus with prejudice; and denying a certificate of appealability. Signed by Judge Kristine G. Baker on 5/20/2013. (dmn)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION BRIAN KEITH MISENHEIMER ADC #136527 v. PETITIONER Case No. 5:12-cv-00387 KGB/BD RAY HOBBS, Director, Arkansas Department of Correction RESPONDENT ORDER The Court has reviewed the Recommended Disposition (“Recommendation”) received from Magistrate Judge Beth Deere, has considered plaintiff Brian Keith Misenheimer’s objections to the Recommendation, and has reviewed de novo the record and those portions of the Recommendation to which Mr. Misenheimer objects. After careful consideration, this Court adopts the Recommendation as its own. Mr. Misenheimer’s petition for writ of habeas corpus is dismissed with prejudice (Dkt. No. 1). Mr. Misenheimer’s objections to the Recommendation focus on the application of equitable tolling to his claims. Mr. Misenheimer essentially argues the facts of his case are more closely aligned with the facts of Holland v. Florida, 130 S.Ct. 2549 (2010), and that the Court’s reasoning there should control whether equitable tolling applies here. This Court disagrees. This Court determines that, based on the record before it, its ruling here is guided by the Court’s reasoning set forth in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807 (2005). For this reason, the Court determines equitable tolling does not apply. When entering a final order adverse to a habeas corpus petitioner, the Court must issue or deny a certificate of appealability. Rule 11 of the Rules Governing Section 2254 Cases. A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). In this case, there is no basis for this Court to issue a certificate of appealability. Accordingly, a certificate of appealability is denied. IT IS SO ORDERED THIS the 20th day of May, 2013. ________________________________ KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE

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