Dehner v. Warden, Chillicothe Correctional Institution
ORDER ADOPTING 20] REPORT AND RECOMMENDATIONS : Accordingly, respondents motion to dismiss (Doc. 12) is GRANTED. The petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 5) is DISMISSED with prejudice on the ground that the petition is time-barred under 28 U.S.C. §2244(d), and petitioners motion forstay and abeyance (Doc. 6) is DENIED. Signed by Judge Susan J. Dlott on 7/21/2017. (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
Richard E. Dehner,
Warden, Chillicothe Correctional Institution,
Case Number: 1:16cv342
Judge Susan J. Dlott
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 Karen L. Litkovitz. Pursuant to such reference, the Magistrate Judge reviewed
the pleadings and filed with this Court on February 14, 2017 a Report and Recommendation
(Doc. 20). 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. 12) is GRANTED. The petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 5) is DISMISSED with prejudice on
the ground that the petition is time-barred under 28 U.S.C. §2244(d), and petitioner’s motion for
stay and abeyance (Doc. 6) is DENIED.
A certificate of appealability will not issue with respect to any of the claims for relief
alleged in the petition, which this Court has concluded are 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,” therefore DENYING 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___________
Judge Susan J. Dlott
United States District Court
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