Patrick v. Warden, Lebanon Correctional Institution

Filing 11

ORDER ADOPTING 10 REPORT AND RECOMMENDATIONS: Respondents motion to dismiss (Doc. 5) is GRANTED and petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 1) isDISMISSED with prejudice to refiling after petitioner exhausts his state court remedies. Signed by Judge Susan J. Dlott on 9/6/2017. (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
WESTERN DIVISION

David Michael Patrick,

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

Case Number: 1:16cv1029
Judge Susan J. Dlott

ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate
Judge Karen L. Litkovitz filed on August 8, 2017 (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 August 22, 2017, hereby
ADOPTS said Report and Recommendation.
Accordingly, respondent’s motion to dismiss (Doc. 5) is GRANTED and petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 1) is DISMISSED with
prejudice to refiling after petitioner exhausts his state court remedies.
A certificate of appealability will not issue under the standard set forth in Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000), because “jurists of reason” will not find it debatable
whether the Court is correct in its procedural ruling that petitioner has failed to exhaust state
court remedies and that his case is DISMISSED without prejudice pending his exhaustion of
such remedies.
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. 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