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

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