Hendrix v. Warden, Lebanon Correctional Insititution
Filing
15
DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 14 ). Signed by Judge Timothy S. Black on 9/4/18. (jlm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
D’JANGO HENDRIX,
Petitioner,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.
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Case No. 1:17-cv-623
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman
DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 14)
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and, on July 31, 2018,
submitted a Report and Recommendation. (Doc. 14). No objections were filed.
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 the Report and Recommendation should be and is hereby ADOPTED in
its entirety.
Accordingly, for the reasons stated above:
1) The petition (Doc. 1) is hereby STAYED and TERMINATED on the Court’s
active docket pending Petitioner’s exhaustion of his Ohio remedies. The stay
is conditioned on Petitioner’s filing a motion to reinstate the case on this
Court’s active docket within thirty (30) days after fully exhausting his state
court remedies through the requisite levels of state appellate review. Petitioner
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will be granted leave to reinstate the case on the Court’s active docket when he
has exhausted his Ohio remedies based on a showing that he has complied with
the conditions of the stay.
2) A certificate of appealability will not issue under the standard set forth in Slack
v. McDaniel, 529 U.S. 473, 484–85 (2000), which is applicable to this case
involving a recommended stay of the petition so that petitioner can exhaust
available state court remedies. Cf. Porter v. White, No. 01-cv-72798-DT, 2001
WL 902612, at *3 (E.D. Mich. Aug. 6, 2001) (unpublished) (citing Henry v.
Dep’t of Corrections, 197 F.3d 1361 (11th Cir. 1999) (pre-Slack case))
(certificate of appealability denied when case dismissed on exhaustion
grounds). See generally Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir.
1998); Christy v. Horn, 115 F.3d 201, 203–206 (3rd Cir. 1997) (order staying
habeas petition to allow exhaustion of state remedies is appealable collateral
order). “Jurists of reason” will not find it debatable whether this Court is
correct in its procedural ruling that petitioner has failed to exhaust state court
remedies and that the case is stayed (as opposed to dismissed without
prejudice) pending exhaustion of such remedies.
3) 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 DENIES 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.
Date: 9/4/2018
/s/ Timothy S. Black
Timothy S. Black
United States District Judge
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