Palmer v. Warden, Lebanon Correctional Institution

Filing 23

ORDER adopting 18 Report and Recommendation. Respondents 6 Motion to Dismiss the petition is GRANTED, and petitioners 1 Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED with prejudice. A certificate of appealabilit y will not issue. The Court will certify 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, will DENY petitioner leave to 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 JESSE PALMER, Petitioner(s), vs. WARDEN, MADISON 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. Black. Pursuant to such reference, the Magistrate Judge reviewed the pleadings and filed with this Court on February 18, 2010 a Report and Recommendation (Doc. 18). Subsequently, the petitioner filed objections to such Report and Recommendation (Doc. 22). 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 the petition (Doc. 6) is GRANTED, and petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice. A certificate of appealability will not issue with respect to petitioner's grounds for relief, which this Court has concluded are all barred from review on procedural waiver grounds; under

Case Number: 1:09cv258 Chief Judge Susan J. Dlott

the first prong of the two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reasons" will not find it debatable whether this Court is correct in its procedural ruling. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court will certify 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, will DENY petitioner leave to 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