Wells v. Warden, Lebanon Correctional Institution

Filing 13

ORDER adopting 7 Report and Recommendation. Respondent's 5 Motion to Dismiss is GRANTED and the petition is DISMISSED with prejudice on the ground that it is barred from review under the one-year statute of limitations set forth in 28 U.S.C . § 2244(d). A certificate of appealability will not issue with respect to the petition. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting the Report and Recommendation will not be taken in good fai th and, therefore, DENIES petitioner leave to proceed on appeal in forma pauperis upon a showing of financial necessity. Signed by Chief Judge Susan J. Dlott on 3/29/2010. (mtw1) (Additional attachment(s) added on 3/30/2010: # 1 Certified Mail Receipt) (mtw1).

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION PATRICK WELLS, Petitioner(s), vs. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent(s). : : : : : : : : : ORDER This matter is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Timothy S. Hogan. Pursuant to such reference, the Magistrate Judge reviewed the pleadings and filed with this Court on January 8, 2010 a Report and Recommendation (Doc. 7). Subsequently, the petitioner filed objections to such Report and Recommendation (Doc. 12). The Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court does determine that such Recommendation should be adopted. Accordingly, respondent's motion to dismiss (Doc. 5) is GRANTED and the petition is DISMISSED with prejudice on the ground that it is barred from review under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). A certificate of appealability will not issue with respect to the petition, which this Court has concluded is barred by the statute of limitations, because under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason"

Case Number: 1:09cv51 Chief Judge Susan J. Dlott

would not find it debatable whether the Court is correct in its procedural ruling. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting the Report and Recommendation will not be taken in "good faith" and, therefore, DENIES petitioner leave to proceed on appeal in forma pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). IT IS SO ORDERED.

___s/Susan J. Dlott___________ Chief Judge Susan J. Dlott United States District Court