Opinion
Case No. 3:11-cv-112 Case No. 3:08-cr-154-1
11-20-2015
JUAN F. SOLANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
DECISION AND ENTRY ADOPTING UNITED STATES CHIEF MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #155); SUSTAINING UNITED STATES' MOTION TO DISMISS (DOC. #116); OVERRULING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (DOC. #108) AND DISMISSING IT WITH PREJUDICE; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER; DENYING CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS; TERMINATION ENTRY
Based on the reasoning and citations of authority set forth by Chief Magistrate Judge Sharon L. Ovington in her November 2, 2015, Report and Recommendations, Doc. #155, as well as on a thorough de novo review of this Court's file and the applicable law, the Court ADOPTS said judicial filing in its entirety. Although the parties were advised of their right to file Objections to the Report and Recommendations, and of the consequences of failing to do so, no Objections have been filed within the time allotted. The Court further notes that Petitioner is represented by counsel.
Petitioner's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255, Doc. #108, is time-barred, and his ineffective assistance of counsel claim lacks merit. Accordingly, the Court SUSTAINS the United States' Motion to Dismiss, Doc. #116, OVERRULES Petitioner's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255, Doc. #108, and DISMISSES Petitioner's motion WITH PREJUDICE.
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 is denied 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. Date: November 20, 2015
/s/_________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE