Summary
holding that the filing of a post-sentence motion to withdraw a guilty plea only serves to toll "the limitations period and does not reset it," and that the "fact that the Ohio courts considered motion . . . on the merits does not change the . . . determination that the federal statute of limitations commenced running when petitioner's conviction became 'final'" six years earlier
Summary of this case from Eberle v. Warden, Mansfield Corr. Inst.Opinion
Case Number: 1:06CV717.
March 28, 2007
ORDER
This matter is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Timothy S. Black. Pursuant to such reference, the Magistrate Judge reviewed the pleadings and filed with this Court on February 22, 2007 Report and Recommendations (Doc. 10). Subsequently, the plaintiff filed objections to such Report and Recommendations (Doc. 11).
The Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court does determine that such Recommendations should be adopted.
Accordingly, Respondent's Motion to Dismiss (Doc. 4) is GRANTED and that Petitioner's Petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED with prejudice as time-barred.
A certificate of appealability should not issue with respect to any Order adopting this Report and Recommendation to dismiss the petition with prejudice on procedural statute of limitations grounds, because under the first prong of the two-part standard enunciated in Slack v McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether this Court is correct in its procedural ruling.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting the Report and Recommendation would not be taken in "good faith" and therefore, DENIES Petitioner leave to proceed on appeal in forma pauperis upon showing of financial necessity. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.