Summary
declining to resolve the issue "because there appears to be a conflict among the circuit courts and it does not appear that the Sixth Circuit has weighed in on the issue"
Summary of this case from Cauthon v. Warden, Marion Corr. Inst.Opinion
Case Number: 1:14cv604
06-30-2015
Brett Peterson, Petitioner(s), v. Warden Pickaway Correctional Institution, Respondent(s).
ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate Judge Stephanie K. Bowman filed on June 3, 2015 (Doc. 10), to whom this case was referred pursuant to 28 U.S.C. §636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed. R. Civ. P. 72(b) expired June 22, 2015, hereby ADOPTS said Report and Recommendation.
Accordingly, respondent's motion to dismiss (doc. 9) is GRANTED and petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 1) is DISMISSED. The dismissal is without prejudice with respect to any claims by petitioner challenging his Kentucky conviction or his conviction and sentence in the Warren County criminal case. However, the dismissal will be with prejudice to the extent that petitioner alleges he has been denied parole eligibility review and challenges the conditions of his confinement at Pickaway Correctional Institution.
A certificate of appealability will not issue with respect to any of the claims that are arguably asserted by petitioner as grounds for habeas corpus relief in the absence of a substantial showing that petitioner has stated a "viable claim of the denial of a constitutional right" or that the issues presented are "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.3 (1983)); see also 28 U.S.C. §2253 ( c ); Fed. R. App. P. 22(b).
With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court will certify pursuant to 28 U.S.C. §1915(a)(3) that an appeal of any Order adopting the Report and Recommendation will not be taken in "good faith," and therefore DENIES petitioner leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.ed 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.
s/Susan J. Dlott
Judge Susan J. Dlott
United States District Court