Heid v. Warden, Ross Correctional Institution

Filing 27

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 21 ). Signed by Judge Timothy S. Black on 2/14/2017. (mr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION RAY SCOTT HEID, Petitioner, vs. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent. : : : : : : : : : : Case No. 1:16-cv-234 Judge Timothy S. Black Magistrate Judge Karen L. Litkovitz DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 21) This case 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 filed with this Court and, on November 21, 2016, submitted a Report and Recommendations. (Doc. 21). Petitioner filed objections on Jan. 10, 2017. (Doc. 25).1 1 After reviewing the Report and Recommendations, Petitioner’s objections, and the case record, the Court finds that Petitioner’s objections are not well taken. The Report and Recommendations recommended Petitioner’s petition for writ of habeas corpus be dismissed as time-barred under 28 U.S.C. § 2244(d)(1). Petitioner’s objections make two main arguments in response: 1) that a jurisdictional challenge can be raised at any time, including in a federal habeas action past the expiration of the statute of limitations, and 2) that he is entitled to equitable tolling. The Report and Recommendation adequately addressed and dismissed both arguments, and Petitioner’s objections add no new information to counter the Magistrate Judge’s analysis on the issue. Accordingly, the petition for writ of habeas corpus must be dismissed as time-barred. 1 As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), 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 Report and Recommendations should be and is hereby adopted in its entirety. Accordingly, IT IS ORDERED that: 1) Respondent’s motion to dismiss (Doc. 11) is GRANTED; 2) Petitioner’s petition for a writ of habeas corpus (Doc. 1) is DISMISSED WITH PREJUDICE; 3) A certificate of appealability shall not issue with respect to any of the grounds for relief alleged in the petition 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); 4) The 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 Petitioner is denied leave to appeal in forma pauperis. IT IS SO ORDERED. Date: 2/14/17 ________________________ Timothy S. Black United States District Judge 2

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