Hendrix v. Warden, Lebanon Correctional Insititution
Filing
37
DECISION AND ENTRY adopting the Report and Recommendation of the United States Magistrate Judge (Doc. 36 ). Signed by Judge Timothy S. Black on 8/31/2021. (rrs)
Case: 1:17-cv-00623-TSB-SKB Doc #: 37 Filed: 08/31/21 Page: 1 of 2 PAGEID #: 1691
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
D’JANGO HENDRIX,
Petitioner,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.
:
:
:
:
:
:
:
:
:
:
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. 36)
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. 28 U.S.C. § 636 (b). Pursuant to such
reference, the Magistrate Judge reviewed the pleadings filed with this Court and, on
August 10, 2021, submitted a Report and Recommendations. (Doc. 36). No objections
were filed, and the time for filing objections has since expired.
The Court has reviewed the Report and Recommendations, is satisfied that there is
nothing clearly erroneous or contrary to law on the face of the record, and accepts the
Magistrate Judge’s recommendations. Fed. R. Civ. P. 72.
Accordingly:
1.
The Report and Recommendations (Doc. 36) is hereby ADOPTED;
2.
The petition (Doc. 1) is administratively STAYED and TERMINATED
on the Court’s active docket pending the adjudication of Petitioner’s motion
to certify the record and pending appeal in the Ohio Court of Appeals Case
No. C1900701. The stay is conditioned on Petitioner filing a motion to
Case: 1:17-cv-00623-TSB-SKB Doc #: 37 Filed: 08/31/21 Page: 2 of 2 PAGEID #: 1692
reinstate the case on this Court’s active docket within 30 days of the Ohio
court ruling on his motion to certify the record and the Ohio Court of
Appeals and Ohio Supreme Court have ruled on his pending appeal.
Petitioner is granted leave to reinstate the case on the Court’s active docket
based on a showing that he has complied with the conditions of the stay.
3.
The motion to expand the record (Doc. 27) is DENIED without prejudice,
subject to refiling upon reopening this case.
4.
The motion for extension of time (Docs. 35) is DENIED.
5.
A certificate of appealability SHALL 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-CV72798-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
(3d Cir. 1997) (order staying habeas petition to allow exhaustion of state
remedies is appealable collateral order). “Jurists of reason” would 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 should
be stayed (as opposed to dismissed without prejudice) pending exhaustion
of such remedies.
6.
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:
8/31/2021
s/Timothy S. Black
Timothy S. Black
United States District Judge
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?