Armacost v. Warden, Lebanon Correctional Institute

Filing 18

ORDER granting 14 Motion to Dismiss; adopting Report and Recommendation re 15 . Dismissing the petition for writ of habeas corpus with prejudice. A certificate of appealability will not issue. Petitioner is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 2/28/12. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Larry D. Armacost,
Petitioner
v.

Case No. 1:11-cv-157

Warden, Lebanon Correctional
Institution,
Respondent

ORDER
This matter is before the Court on the Magistrate Judge’s Report and
Recommendation filed January 26, 2012 (Doc. 15).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C),
including notice that the parties would waive further appeal if they failed to file
objections to the Report and Recommendation in a timely manner. See United States
v. Walters, 638 F.2d 947 (6th Cir. 1981). As of the date of this Order, no objections
to the Magistrate Judge’s Report and Recommendation have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C. § 636, we find the
Magistrate Judge’s Report and Recommendation correct.
Accordingly, it is ORDERED that the Report and Recommendation of the
Magistrate Judge is hereby ADOPTED. Petitioner’s petition for writ of habeas
corpus is DISMISSED with prejudice. Respondent’s motion to dismiss is
GRANTED.
A certificate of appealability will not issue with respect to petitioner’s sole
claim for relief, which this Court has concluded is barred from review on a
procedural ground, because under the first prong of the applicable two-part standard
enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason

would not find it debatable as to whether this Court is correct in its procedural
rulings.”
This Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) an appeal of this
Order would not be taken in good faith, and therefore DENIES petitioner leave to
appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d
949, 952 (6th Cir. 1997).

Date: February 28, 2012

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court

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