Sayles v. Warden, London Correctional Institution

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations. Accordingly, respondents motion to dismiss (Doc. 11) is GRANTED and petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMI SSED with prejudice on the ground that it is time-barred under 28 U.S.C. § 2244(d).A certificate of appealability will not issue.With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court will certify pursuan t 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 appeal in forma pauperis upon a showing of financial necessity.. Signed by Chief Judge Susan J. Dlott on 8/15/12. (wam1) (Additional attachment(s) added on 8/15/2012: # 1 Certified Mail Receipt) (jlw).

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

Tony Sayles,
Petitioner(s),
vs.
Warden, London Correctional Institution,
Respondent(s).

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Case Number: 1:11cv524
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 J. Gregory Wehrman. Pursuant to such reference, the Magistrate Judge
reviewed the pleadings and filed with this Court on July 17, 2012 a Report and Recommendation
(Doc. 17). Subsequently, the petitioner filed objections to such Report and Recommendation.
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. 11) is GRANTED and petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED with
prejudice on the ground that it is time-barred under 28 U.S.C. § 2244(d).
A certificate of appealability will not issue with respect to the sole ground for relief
alleged in the petition, 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” will not find it debatable whether the

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 DENIES 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