Opinion
Case No. 3:13-cv-116
08-22-2013
ANTHONY K. BOLLING, Petitioner, v. DONALD MORGAN, WARDEN Respondent.
JUDGE WALTER H. RICE
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #6) AND
SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. #1 1) IN
THEIR ENTIRETY; OVERRULING PETITIONER'S OBJECTIONS
THERETO (DOC. ##7, 12); SUSTAINING RESPONDENT'S MOTION
TO DISMISS (DOC. #5); DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS (DOC. #1) WITH PREJUDICE; JUDGMENT TO
ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER;
CERTIFICATE OF APPEALABILITY AND ANTICIPATED MOTION FOR
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED; TERMINATION
ENTRY
Based on the reasoning and citations of authority set forth by United States Magistrate Judge Michael R. Merz, in his July 2, 2013, Report and Recommendations (Doc. #6), and in his August 2, 2013, Supplemental Report and Recommendations (Doc. #11), as well as upon a thorough de novo review of this Court's file and the applicable law, this Court ADOPTS said judicial filings in their entirety, and OVERRULES Petitioner's objections thereto (Docs. ##7 and 12). The Court SUSTAINS Respondent's Motion to Dismiss (Doc. #5), albeit for slightly different reasons than those argued. The Petition for a Writ of Habeas Corpus (Doc. #1) is DISMISSED WITH PREJUDICE as time-barred.
In so holding, the Court notes that Petitioner still has not produced a copy of the November 16, 2010, Warrant for Removal for Resentencing that allegedly triggered notice of the factual predicate for his claim. See 28 U.S.C. § 2244 (d)(1)(D). But even assuming, arguendo, that the one-year statute of limitations did not begin running until that date, the Petition still was not timely filed. The statute of limitations ran for 76 days until January 31, 2011, when it was tolled upon Petitioner's filing of his motion to dismiss. It resumed running on April 18, 2012, when the Ohio Supreme Court declined review. See 28 U.S.C. § 2244(d)(2). The Petition was not filed until April 17, 2013, making it more than two months late.
Given that Petitioner has not made a substantial showing of the denial of a constitutional right and, further, that the Court's decision herein would not be debatable among reasonable jurists, and because any appeal from this Court's decision would be objectively frivolous, Petitioner is denied a certificate of appealability and any anticipated request for leave to appeal in forma pauperis.
Judgment will be entered in favor of Respondent and against Petitioner.
The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
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WALTER H. RICE
UNITED STATES DISTRICT JUDGE