Gearhart v. NH Department of Corrections, Commissioner

Filing 10

///ORDER approving 9 Report and Recommendation; granting 8 Motion to Dismiss; denying as moot 5 Motion TO/FOR Tolling of Statute of Limitations on Habeas Corpus; denying as moot 1 PETITION for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. So Ordered by Judge Paul J. Barbadoro.(js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Kevin (Kelly) Grant Gearhart
v.

Case No. 18-cv-104-PB

Helen E. Hanks, Commissioner of
New Hampshire Department of Corrections

ORDER

No objection having been filed, I herewith approve the
Report and Recommendation of Magistrate Judge Andrea K.
Johnstone dated April 27, 2018, and grant respondent’s motion to
dismiss (Doc. No. 8) and deny as moot both Gearhart’s petition
(Doc. No. 1) and her motion (Doc. No. 5) as to the statute of
limitations.

“‘[O]nly those issues fairly raised by the

objections to the magistrate's report are subject to review in
the district court and those not preserved by such objection are
precluded on appeal.’”

School Union No. 37 v. United Nat'l Ins.

Co., 617 F.3d 554, 564 (1st Cir. 2010) (quoting Keating v.
Secretary of Health & Human Servs., 848 F.2d 271, 275 (1st
Cir.1988)); see also United States v. Valencia-Copete, 792 F.2d
4, 6 (1st Cir. 1986) (after proper notice, failure to file a
specific objection to magistrate's report will waive the right
to appeal).

Additionally, finding that the petitioner has

failed to make a substantial showing of the denial of a

constitutional right, the court declines to issue a certificate
of appealability.

See 28 U.S.C.§ 2253(c)(2); Rule 11, Rules

Governing Habeas Corpus Cases Under Section 2254; First Cir. LR
22.0.
/s/ Paul Barbadoro
____________________________
Paul Barbadoro
United States District Judge
Date: May 23, 2018

cc:

Kelly Gearhart, pro se
Elizabeth C. Woodcock, Esq.

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