Opinion
Case No. 1:07-cv-897.
January 12, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on the Magistrate Judge's Report and Recommendation filed December 11, 2008 (Doc. 16).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). As of the date of this Order, no objections have been filed to the Magistrate Judge's Report and Recommendation.
Having reviewed this matter de novo pursuant to 28 U.S.C. § 636, we find the Magistrate Judge's Report and Recommendation to be correct.
Accordingly, IT IS ORDERED that the Magistrate Judge's Report is ADOPTED as follows:
1) Petitioner's petition for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE to refiling after petitioner has exhausted the arguably remedy of a delayed application to reopen his appeal pursuant to Ohio App. R. 26(B).
2) Respondent's request for a dismissal of the petition with prejudice is DENIED.
3) Petitioner's motion to stay proceedings is DENIED.
4) A certificate of appealability will not issue under the standard set forth in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), because "jurists of reason" would not find it debatable whether this Court is correct in its procedural ruling that petitioner has failed to exhaust state remedies and that this case should be dismissed without prejudice pending exhaustion of such remedies.
Because this Court finds the first prong of the Slack standard has not been met in this case, it need not address the second prong of Slack as to whether or not "jurists of reason" would find it debatable whether petitioner has stated viable constitutional claims for relief in his habeas petition. See Slack, 529 U.S. at 484.
5) This Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) an appeal of this Order would 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.3d 949, 952 (6th Cir. 1997). Petitioner remains free to apply to proceed in forma pauperis in this Court of Appeals.