Carter v. Kelly
Filing
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Memorandum Opinion and Order: Accordingly, the Report and Recommendation is accepted. The Petition for Writ of Habeas Corpus is denied. Furthermore, for the reasons stated herein and in the Report and Recommendation, the Court certifies, pur suant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b). Judge Patricia A. Gaughan on 12/21/11. (LC,S) re 12
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason Carter,
Petitioner,
vs.
Bennie Kelly, Warden
Respondent.
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CASE NO. 4:09 CV 2262
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Armstrong (Doc. 12) which recommends denial of the Petition for Writ of Habeas Corpus
pending before the Court as well as petitioner’s Motion for Abeyance Order. For the following
reasons, the Report and Recommendation is ACCEPTED.
Introduction
Petitioner, Jason Carter, commenced this action with the filing of a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge issued her Report and
Recommendation recommending that the Petition be denied. Petitioner filed Objections to the
Report and Recommendation.
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Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts
provides, “The judge must determine de novo any proposed finding or recommendation to which
objection is made. The judge may accept, reject, or modify any proposed finding or
recommendation.”
Discussion
Petitioner was found guilty of murder in 2006 by a jury and sentenced to 15 years to life
in prison. He filed this Petition, asserting three grounds for relief. Initially, the Magistrate Judge
recommended that petitioner’s Motion for Abeyance be denied as petitioner was not requesting a
remand to state court for purposes of exhausting an unexhausted claim. Rather, petitioner is
attempting to return to state court for re-sentencing on the issue of imposition of post-release
control. The Magistrate Judge then determined that petitioner’s three claims were unexhausted
and procedurally defaulted.
In submitting his Objections, petitioner appears to ask this Court to dismiss his present
Petition (Doc. 13 at 3) and allow him to amend it (Id. 5), or enter an order striking it with
permission to present new claims (Id.). The Court finds no reasonable basis in law presented by
petitioner in favor of such relief. Rather, the Court finds the reasons for denial of the Petition
asserted by the Magistrate Judge to be fully supported.
For these reasons, and those stated in the Report and Recommendation which is
incorporated herein by reference, a writ of habeas corpus is not warranted.
Conclusion
Accordingly, the Report and Recommendation is accepted. The Petition for Writ of
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Habeas Corpus is denied. Furthermore, for the reasons stated herein and in the Report and
Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from
this decision could not be taken in good faith, and that there is no basis upon which to issue a
certificate of appealability. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 12/21/11
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