Peterson v. Warden Pickaway Correctional Institution

Filing 12

ORDER adopting 10 Report and Recommendations: Respondents motion to dismiss 9 is GRANTED and petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 1 is DISMISSED. With respect to any application by petitioner to p roceed 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. Signed by Judge Susan J. Dlott on 6/30/2015. (jlw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

Brett Peterson,

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Petitioner(s),
vs.
Warden Pickaway Correctional Institution,
Respondent(s).

Case Number: 1:14cv604
Judge Susan J. Dlott

ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate
Judge Stephanie K. Bowman filed on June 3, 2015 (Doc. 10), to whom this case was referred
pursuant to 28 U.S.C. §636(b), and noting that no objections have been filed thereto and that the
time for filing such objections under Fed. R. Civ. P. 72(b) expired June 22, 2015, hereby
ADOPTS said Report and Recommendation.
Accordingly, respondent’s motion to dismiss (doc. 9) is GRANTED and petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 1) is DISMISSED. The
dismissal is without prejudice with respect to any claims by petitioner challenging his Kentucky
conviction or his conviction and sentence in the Warren County criminal case. However, the
dismissal will be with prejudice to the extent that petitioner alleges he has been denied parole
eligibility review and challenges the conditions of his confinement at Pickaway Correctional
Institution.
A certificate of appealability will not issue with respect to any of the claims that are
arguably asserted by petitioner as grounds for habeas corpus relief in the absence of a substantial
showing that petitioner has stated a “viable claim of the denial of a constitutional right” or that

the issues presented are “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.3
(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 DENIES petitioner
leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.ed
949, 952 (6th Cir. 1997).

IT IS SO ORDERED.

___s/Susan J. Dlott___________
Judge Susan J. Dlott
United States District Court