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.)

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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

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