Callender v. Warden, Ross Correctional Institution
Filing
13
ORDER ADOPTING REPORT AND RECOMMENDATION. DENYING Petitioner's Motion for Stay and Abeyance. This action is DISMISSED. The Court DECLINES to issue a certificate of appealability. The Clerk is DIRECTED to enter FINAL JUDGMENT. Signed by Judge Algenon L. Marbley on 9/13/2017. (cw)(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
EASTERN DIVISION
JESEAN CALLENDER,
Petitioner,
vs.
Civil Action 2:16-cv-1120
JUDGE ALGENON L. MARBLEY
Magistrate Judge King
WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.
ORDER
On
August
24,
2017,
the
United
States
Magistrate
Judge
recommended that Petitioner’s Motion for Stay and Abeyance (Doc. 10)
be
denied
and
Petitioner’s
that
claims
this
action
be
were
dismissed,
procedurally
reasoning
defaulted.
Report
that
and
Recommendation (Doc. 12). Although the parties were advised of their
right to object to that recommendation and of the consequences of
their failure to do so, there has been no objection.
The Report and Recommendation (Doc. 12) is ADOPTED AND AFFIRMED.
Petitioner’s Motion for Stay and Abeyance (Doc. 10) is DENIED. This
action is hereby 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).
Where,
as
here,
the
claims
have
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
district
jurists
court
of
was
reason
correct
would
in
find
its
it
debatable
procedural
whether
ruling.
the
Slack
v.
McDaniel, 529 U.S. 473, 484 (2000).
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 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.
s/Algenon L. Marbley
Algenon L. Marbley
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?