Davis v. Warden, Hocking Correctional Facility

Filing 18

ORDER ADOPTING 14 REPORT AND RECOMMENDATION signed by Judge Susan J. Dlott on 3/29/17. Respondents 10 Motion to Dismiss is GRANTED. Petitioners prose petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED with preju dice on the ground that it is time-barred. A certificate of appealability will not issue. 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 upon a showing of financial necessity. (eh)(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

John W. Davis,

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Petitioner(s),
vs.
Warden, Hocking Correctional Facility,
Respondent(s).

Case Number: 1:16cv485
Judge Susan J. Dlott

ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate
Judge Karen L. Litkovitz filed on December 9, 2016 (Doc. 14), 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 January 23, 2017, hereby
ADOPTS said Report and Recommendation.
The petitioner filed a motion to withdraw the motion for extension of time (Doc. 17).
This motion is DENIED AS MOOT.
Accordingly, respondent’s motion to dismiss (Doc. 10) is GRANTED. Petitioner’s pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED with
prejudice on the ground that it is time-barred.
A certificate of appealability will not issue with respect to the sole ground for relief
alleged in the petition, which this Court has concluded is procedurally barred from review on
statute-of-limitations grounds, 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,” and therefore DENIES 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