Levy v. Mills

Filing 121

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth in the accompanying Memorandum, the Court hereby ADOPTS and APPROVES the Magistrate Judge's Report and Recommendation (Docket No. 116 ), to the extent that it concludes tha t Petitioner is not entitled to equitable tolling and recommends dismissal of this action as untimely. Signed by Chief Judge Kevin H. Sharp on 12/22/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
CARLOS LEVY,
Petitioner,
v.
DAVID R. OSBORNE, Warden,
Respondent.

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No. 1:10-cv-00005
Chief Judge Sharp

ORDER
For the reasons set forth in the accompanying Memorandum, the Court hereby ADOPTS
and APPROVES the Magistrate Judge’s Report and Recommendation (Docket No. 116), to the
extent that it concludes that Petitioner is not entitled to equitable tolling and recommends
dismissal of this action as untimely.
Accordingly, Petitioner’s objections (Docket No. 119) are OVERRULED, and this action
is DISMISSED as untimely pursuant to 28 U.S.C. § 2244(d).
The Court must issue or deny a certificate of appealability (“COA”) when it enters a final
order adverse to a § 2254 petitioner. Rule 11, Rules Gov’g § 2254 Cases. A petitioner may not
take an appeal unless a district or circuit judge issues a COA. 28 U.S.C. § 2253(c)(1); Fed.
R.App. P. 22(b)(1). A COA may issue only when the petitioner “has made a substantial showing
of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). A “substantial showing” is made
when the petitioner demonstrates 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 deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 336 (2003) (citations and internal quotation marks omitted). “[A] COA
does not require a showing that the appeal will succeed,” Miller–El, 537 U.S. at 337, but courts
should not issue a COA as a matter of course. Id. Because reasonable jurists could not debate

that Petitioner’s action is untimely and not subject to equitable tolling, the Court DENIES a COA.
Petitioner may, however, seek a COA directly from the Sixth Circuit. Rule 11(a), Rules Gov’g §
2254 Cases.
It is so ORDERED.

Kevin H. Sharp, Chief Judge
United States District Court

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