Smith v. Warden, Chillicothe Correctional Institution
Filing
22
DECISION AND ORDER DENYING MOTIONS FOR CERTIFICATE OF APPEALABILITY AND FOR LEAVE TO APPEAL IN FORMA PAUPERIS 20 21 . Signed by Magistrate Judge Michael R. Merz on 10/10/2018. (kpf)(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 AT CINCINNATI
LADON SMITH,
Petitioner,
:
- vs -
Case No. 1:17-cv-570
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
WARDEN,
Chillicothe Correctional Institution
:
Respondent.
DECISION AND ORDER DENYING MOTIONS FOR CERTIFICATE
OF APPEALABILITY AND FOR LEAVE TO APPEAL IN FORMA
PAUPERIS
This habeas corpus case is before the Court on Petitioner’s Notice of Appeal (ECF No. 19)
and his associated Motions for Certificate of Appealability (ECF No. 21) and Leave to Appeal in
forma pauperis (ECF No. 20).
The Notice of Appeal is from the Order Judge Barrett entered September 6, 2018, which
Petitioner understands to be a “final order.” However, the Order of September 6, 2018, is not a
final appealable order. Judge Barrett has not yet entered a final order in the case. Presumably he
will do so when he resolves Petitioner’s Objections (ECF Nos. to the Report and
Recommendations on the merits (ECF No. 13). As required by Habeas Rule 11, such a final order
will itself contain a decision on a certificate of appealability and a recommendation to the Sixth
Circuit on in forma pauperis status on appeal.
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The September 6, 2018, Order which Petitioner is attempting to appeal was not a final
order. Rather, it adopted the Report and Recommendations (ECF No. 17) on the Motion for
Reconsideration (ECF No. 16) when Petitioner failed to file any objections to that Report.
Under 28 U.S.C. § 1291, a litigant may appeal to the circuit court only from final orders of
a district court. Because the Order of September 6, 2018, is not a final order, it is not appealable.
Therefore the instant Motions (ECF Nos. 20 and 21) are denied as moot.
October 10, 2018.
s/ Michael R. Merz
United States Magistrate Judge
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