Kelly v. Warden, London Correctional Institute

Filing 26

ORDER by Chief Judge Susan J. Dlott granting 17 Motion to Dismiss and petitioners petition for writ of habeas corpus is dismissed with prejudice; certificate of appealability will not issue ; court denies petitioner leave to appeal ifp; adopting Report and Recommendations re 21 Report and Recommendations. (vp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Otis M. Kelly, Jr.,
Petitioner(s),
vs.
Warden, London Correctional Institute,
Respondent(s).

:
:
:
:
:
:
:
:
:

Case Number: 1:11cv254
Chief Judge Susan J. Dlott

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 Karen L. Litkovitz. Pursuant to such reference, the Magistrate Judge reviewed
the pleadings and filed with this Court on April 30, 2012 a Report and Recommendation (Doc.
21). Subsequently, the petitioner filed objections to such Report and Recommendation (Doc.
25).
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. 17) is GRANTED and petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 4) is DISMISSED with
prejudice on the ground that the single ground raised in the petition is not cognizable in federal
habeas corpus.
A certificate of appealability will not issue with respect to the claim alleged in the
petition, which have been addressed on the merits herein, because petitioner has not stated a

“viable claim of the denial of a constitutional right,” nor are the issues presented “adequate to
deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. §2253 ( c );
Fed. R. App. P. 22(b).
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 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