Opinion
Civil Action 2:12-cv-489
02-24-2014
MUSA IKHARO, Petitoiner, v. ATTORNEY GENERAL, MIKE DEWINE, Respondent.
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers
ORDER
As the record reflects, the Court entered judgment in this case on July 22, 2013. Petitioner then appealed and filed an application to Proceed Without Prepayment of Fees, seeking to proceed in forma pauperis on appeal. The Court denied this application finding that the appeal was not taken in good faith pursuant to Federal Rule of Appellate Procedure 24(a)(3). This matter is now before the Court for formal consideration as to whether a certificate of appealability should issue. For the following reasons, the Court DENIES Petitioner's request for a certificate of appealability.
The Court, in its July 22, 2013 Opinion and Order adopted the Report and Recommendation of the Magistrate Judge and dismissed this action for lack of subject matter jurisdiction. The Court explained that Petitioner's claim is time-barred by 28 U.S.C. § 2244(d). The Court also explained that the United State Supreme Court held that Padilla v. Kentucky, 559 U.S. 356 (2010) does not apply retroactively to cases on collateral review. See Order 3, ECF No. 28 (citing Chaidez v. United States, 133 S. Ct. 1103 (2013)). The Court rejected Petitioner's contentions that the limitations period reset when he filed a motion for delayed review, and that his deportation prevented him from seeking timely habeas review. Id.
Before Petitioner can appeal the Court's decision, a certificate of appealability under 28 U.S.C. § 2253(c)(1)(A) must issue. A certificate of appealability will be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), the United States Supreme Court held that where, as here, the petition is dismissed on procedural grounds, petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different matter or that the issues presented were 'adequate to deserve encouragement to proceed further .'" (quoting Barefoot v. Estelle, 463 U.S. 880, 898 n.4 (1983)).
Here, jurists of reason would not find it debatable whether this Court is correct on its procedural ruling that Petitioner's claims are time-barred. The Court therefore CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that the appeal of the Order adopting the Report and Recommendation is not taken in "good faith"
IT IS SO ORDERED.
__________________________
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE