Secessions v. Warden, Lebanon Correctional Institution

Filing 19

Memorandum Opinion Adopting Report and Recommendation 16 in its entirety. Respondent's Motion toDismiss 10 is GRANTED. The Petition for Writ of Habeas Corpus 1 is DISMISSED without prejudice to refiling. All pending motions are hereby terminated. The Court declines to issue a certificate of appealability. Judge Donald C. Nugent(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TIMOTHY DARNELL SECESSIONS,

)
)
Petitioner,
)
)
v.
)
)
WARDEN, LEBANON CORRECTIONAL )
INSTITUTION,
)
)
Respondent.
)

CASE NO. 5:13 CV 195

JUDGE DONALD C. NUGENT
Magistrate Judge Vecchiarelli

MEMORANDUM OPINION

This matter is before the Court on the Report and Recommendation issued by Magistrate
Judge Vecchiarelli. (Docket #16.) On January 23, 2013, Petitioner, Timothy Darnell
Secessions, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket
#1.) Respondent filed a Motion to Dismiss the Petition on November 25, 2013 (Docket #10),
asking the Court to dismiss the Petition, arguing Petitioner has failed to exhaust his
administrative remedies. The Magistrate Judge recommends that the Petition be dismissed
without prejudice to refiling. No objections to the Report and Recommendation have been filed.

Standard of Review for a Magistrate Judge’s Report and Recommendation
The applicable standard of review for a magistrate judge’s report and recommendation

depends upon whether objections were made to that report. When objections are made to a
report and recommendation of a magistrate judge, the district court reviews the case de novo.
FED. R. CIV. P. 72(b) states:
The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.
Conclusion
This Court has reviewed the Magistrate Judge’s Report and Recommendation de novo,
and finds it to be well-reasoned and correct. The Court ADOPTS the Report and
Recommendation of the Magistrate Judge (Docket #16) in its entirety. Respondent’s Motion to
Dismiss (Docket # 10) is GRANTED. The Petition for Writ of Habeas Corpus (Docket #1) is
DISMISSED without prejudice to refiling. All pending motions are hereby terminated.
Certificate of Appealability
Pursuant to 28 U.S.C. § 2253, the Court must determine whether to grant a certificate of
appealability as to any of the claims presented in the Petition. 28 U.S.C. § 2253 provides, in
part, as follows:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from -(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
-2-

In order to make “substantial showing” of the denial of a constitutional right, as required
under 28 U.S.C. § 2255(c)(2), a habeas prisoner must demonstrate “that reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529
U.S. 473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).)
Where a district court has rejected the constitutional claims on the merits, the petitioner
must demonstrate only that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong. Slack, 529 U.S. at 484. Where the petition has been
denied on a procedural ground without reaching the underlying constitutional claims, the court
must find that the petitioner has demonstrated that reasonable jurists could debate whether the
petition states a valid claim of the denial of a constitutional right and that reasonable jurists
could debate whether the district court was correct in its procedural ruling. Id. "Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing the petition
or that the petitioner should be allowed to proceed further." Id.
For the reasons stated in the Magistrate Judge’s Report and Recommendation, a
reasonable jurist could not conclude that dismissal of the Petition is in error or that Petitioner
should be permitted to proceed further. Accordingly, the Court declines to issue a certificate of
appealability.
IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: June 27, 2014
-3-