Hunter v. Warden, Ross Correctional Institution

Filing 16

ORDER adopting and affirming 13 the Report and Recommendation; granting 11 Petitioner's Motion for Reconsideration. Signed by Judge Michael H. Watson on 7/18/17. (jk) (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
EASTERN DIVISION

PETER A. HUNTER,

Petitioner,
Case No. 2:16-cv-506
JUDGE MICHAEL H. WATSON

V.

Magistrate Judge King
WARDEN, ROSS
CORRECTIONAL INSTITUTION,

Respondent.
ORDER

On June 13, 2017, the Magistrate Judge recommended that Petitioner's Motion
for Reconsideration and Motion for Stay and Abeyance, EOF No. 11, be GRANTED to
the extent that Petitioner seeks reconsideration of the May 10, 2017, Opinion and

Order, EOF No. 10, but the Magistrate Judge also recommended that the Petition, EOF
No. 3, and this action be DISMISSED.

Report and Recommendation, EOF No. 13.

Although the parties were advised of their right to object to that recommendation and of
the consequences of their failure to object, there has been no objection.
The Report and Recommendation, EOF No. 13, is ADOPTED AND AFFIRMED.
To the extent that the motion seeks reconsideration of the May 10, 2017, Opinion and

Order, EOF No. 10, Petitioner's Motion for Reconsideration and Motion for Stay and
Abeyance, EOF No. 11, is GRANTED. However, for the reasons stated in the Report
and Recommendation, Petitioner's first and fifth claims are dismissed as without merit

and Petitioner's second, third, and fourth claims are dismissed as procedurally
defaulted. Accordingly, the Petition, EOF No. 3, and this action are DISMISSED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
States District Courts, the Court now considers whether to issue a certificate of

appealability. "In contrast to an ordinary civil litigant, a state prisoner who seeks a writ
of habeas corpus in federal court holds no automatic right to appeal from an adverse
decision by a district court." Jordan v. Fisher, — U.S. —. —, 135 S.Ct. 2647, 2650
(2015); 28 U.S.C. § 2253(c)(1) (requiring a habeas petitioner to obtain a certificate of

appealability in order to appeal.)
When a claim has been denied on the merits, a certificate of appealability may

issue only if the petitioner "has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). To make a substantial showing of the

denial of a constitutional right, a petitioner must show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved

in a different manner or that the issues presented were 'adequate to desen/e
encouragement to proceed further.'"

Slack v. McDaniei, 529 U.S. 473, 484 (2000)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)).

When a claim has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,
and that jurists of reason would find it debatable whether the district court was correct in
its procedurai ruling. Id.
Upon review of the record, this Court is not persuaded that reasonable jurists
could debate whether petitioner's claims should have been resolved differently or that

Case No. 2:16-cv-506

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jurists of reason would find it debatable whether this Court was correct in its procedural
rulings. Therefore, the Court DECLINES to issue a certificate of appealability.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
IT IS SO ORDERED.

IICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:16-cv-506

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