Allison v. Warden, Madison Corr. Inst.

Full title: THOSHA ALLISON, Petitioner, v. WARDEN, MADISON CORRECTIONAL INSTITUTION…

Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Date published: Sep 4, 2013

CASE NO. 2:12-CV-634 (S.D. Ohio Sep. 4, 2013)

Opinion

CASE NO. 2:12-CV-634

09-04-2013

THOSHA ALLISON, Petitioner, v. WARDEN, MADISON CORRECTIONAL INSTITUTION, Respondent.

GEORGE C. SMITH

JUDGE SMITH

MAGISTRATE JUDGE ABEL

OPINION AND ORDER

On August 13, 2013, the Magistrate Judge issued a Report and Recommendation recommending that Respondent's Motion to Dismiss (Doc. No. 6) be granted and that this action be dismissed as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d) and alternatively, as unexhausted. Petitioner objects to the Magistrate Judge's recommendation of dismissal of this habeas corpus petition as time-barred. Petitioner offers no grounds for his objections, however, and does not indicate that he has exhausted his claims.

Pursuant to 28 U.S.C. 636(b), this Court has conducted a de novo review. For the reasons detailed in the Magistrate Judge's Report and Recommendation, Petitioner's Objections, Doc. No. 14, are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss, Doc. No. 6, is GRANTED. This case is hereby is DISMISSED.

Petitioner also seeks a certificate of appealability. Where a claim has where the Court dismisses a claim on procedural grounds, a certificate of appealability

should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id. Petitioner has failed to establish that reasonable jurists would debate whether this Court appropriately dismissed Petitioner's habeas corpus petition. His request for a certificate of appealability therefore is DENIED.

IT IS SO ORDERED.

______________________

GEORGE C. SMITH

United States District Judge