Smith v. Sheriff, Hamilton County Justice Center

Filing 9

ORDER adopting Report and Recommendation re 8 ; dismissing the petition without prejudice to refiling. A certificate of appealaility will not issue. Petitioner is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 8/4/16. (mb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Thomas L. Smith,
Petitioner
v.

Case No. 1:15-cv-333

Sheriff, Hamilton County
Justice Center,
Respondent

ORDER
This matter is before the Court on the Magistrate Judge’s Report and
Recommendation filed July 13, 2016 (Doc. 8).
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 without prejudice to refiling after petitioner has exhausted the
available remedy of a delayed appeal to the Ohio Court of Appeals from the trial
court’s October 15, 2015 judgment entry of conviction and sentence in Case No. B1305689.
A certificate of appealability will not issue because petitioner has not made a
substantial showing that he has stated “viable claim[s] of the denial of a constitutional

right” or that the issues presented are “adequate to deserve encouragement to proceed
further.” See Slack, 529 U.S. at 475 (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).
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: August 4, 2016

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

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