Lowe v. Warden Chillicothe Correctional Institution

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 12 Report and Recommendation in all respects. The Court DISMISSES Petitioner's Petition for a Writ of Habeas Corpus 1 with prejudice. The Court further FINDS that a certificate of appealability should not issue with respect to either of the claims for relief alleged in the Petition, and CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any application by Petitioner to proceed on appeal in forma pauperis, an appeal of this Order would not be taken in "good faith" and therefore the Court DENIES Petitioner leave to appeal in forma pauperis upon a showing of financial necessity. Signed by Judge S Arthur Spiegel on 5/1/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GABRIEL L. LOWE,
Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

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NO. 1:13-CV-00061
ORDER

This matter is before the Court on the Magistrate Judge’s
April 7, 2014 Report and Recommendation (doc. 12).

No Objection

has been filed.
Proper notice was provided to the Parties under Title 28
U.S.C. § 636(b)(1)(C), including the notice that they would waive
further

appeal

if

they

failed

to

file

an

objection

to

the

Magistrate Judge’s Report and Recommendation in a timely manner.
See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Having reviewed this matter de novo, pursuant to Title 28
U.S.C. § 636, the Court concludes the Magistrate Judge’s Report and
Recommendation is correct that Petitioner’s first ground for relief
is procedurally defaulted, and his second ground for relief should
be denied as his conviction was based on sufficient evidence that
his driving behaviors were reckless.
Accordingly, the Court ADOPTS and AFFIRMS the Report and
Recommendation

in

all

respects

(doc.

12),

and

DISMISSES

Petitioner’s Petition for a Writ of Habeas Corpus (doc. 1) with
prejudice.

The

Court

further

FINDS

that

a

certificate

of

appealability should not issue with respect to either of the claims
for relief alleged in the Petition, which this Court has concluded
are barred from review because under the first prong of the
applicable two-part standard “jurists of reason would not find it
debatable whether this Court is correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Finally, the Court
CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that with respect to
any application by Petitioner to proceed on appeal in

forma

pauperis, an appeal of this Order would not be taken in “good
faith” and therefore the Court DENIES Petitioner leave to appeal in
forma pauperis upon a showing of financial necessity. Fed. R. App.
P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

SO ORDERED.
Dated: May 1, 2014

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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