Prado v. Warden, Chillicothe Correctional Institute, No. 2:2017cv00790 - Document 5 (S.D. Ohio 2017)

Court Description: OPINION AND ORDER adopting Report and Recommendations re 3 Report and Recommendations. Signed by Judge James L. Graham on 10/16/2017. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Download PDF

Prado v. Warden, Chillicothe Correctional Institute Doc. 5 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION MANUEL B. PRADO, CASE NO. 2:17-CV-00790 JUDGE JAMES L. GRAHAM Magistrate Judge Kimberly A. Jolson Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On September 27, 2017, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts recommending that this action be dismissed as barred by the one-year statute of limitations provided for under 28 U.S.C. § 2244(d). (Doc. 3.) Petitioner has filed a Response to the Magistrate Judge’s Report and Recommendation. (Doc. 4.) Petitioner objects to the Magistrate Judge’s recommendation of dismissal of this action with prejudice. He seeks to voluntary dismiss the case so that he may return to the state courts and exhaust his claims by filing a motion for a delayed appeal with the Ohio Supreme Court. See Petitioner’s Response to Magistrate’s Report and Recommendation (Doc. 4.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. Petitioner’s objection is OVERRULED. His request for a dismissal without prejudice is DENIED. As discussed by the Magistrate Judge, the record reflects that this action plainly is time-barred. Therefore, the filing of a motion for a delayed appeal will not assist Petitioner in obtaining federal habeas corpus relief. Any re-filing of this action likewise will be time-barred. Dockets.Justia.com The Report and Recommendation (Doc. 3) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court now considers whether to issue a certificate of appealability. “In contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v. Fisher, -- U.S. --, --, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. 2253(c)(1) (requiring a habeas petitioner to obtain a certificate of appealability in order to appeal). The petitioner must establish the substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 n. 4). Where the Court dismisses a claim on procedural grounds, however, 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.” Id. 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.” Id. at 485. The 2 court may first “resolve the issue whose answer is more apparent from the record and arguments.” Id. Upon review of the record, this Court is not persuaded that reasonable jurists could debate whether Petitioner’s claims should have been resolved differently or that jurists of reason would find it debatable whether this Court was correct in its procedural rulings. Therefore, the Court DECLINES to issue a certificate of appealability. The Clerk is DIRECTED to enter FINAL JUDGMENT. Date: October 16, 2017 ____s/James L. Graham_____ JAMES L. GRAHAM United States District Judge 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.