Halley v. Warden, Ross Corr. Inst., CASE NO. 2:13-CV-00199

• Decision Date: 24 January 2014
• Docket Number: CASE NO. 2:13-CV-00199
• Parties: ZACHARY A. HALLEY, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

ZACHARY A. HALLEY, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:13-CV-00199

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

Date: January 24, 2014

JUDGE JAMES L. GRAHAM

MAGISTRATE JUDGE KEMP

OPINION AND ORDER

On December 11. 2013. final Judgment was issued dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on Petitioner's January 16, 2014. Notice of Appeal, which this Court construes as a request for a certificate of appealability. For the reasons that follow. Petitioner's request for a certificate of appealability (HCF #18) is DENIED.

Petitioner is DENIED in forma pauperis status on appeal.

Under Fed.R.App.P. 4(a)(1)(A). an appeal must be filed within thirty days after entry of judgment of the order being appealed. Here, that dale is January 10. 2014. Petitioner did not file his Notice of Appeal until January 16. 2014.

A timely notice of appeal is a mandatory and jurisdictional prerequisite which the court of appeals can neither waive nor extend. Bowles v. Russell. 551 U.S. 205. 127 S.Ct. 2360. 168 L.Ed.2d 96 (2007) (distinguishes time limits established by statute from those in court rules; dissent distinguishes statutes of limitation subject to equitable tolling without comment by majority); Brawder v. Director, Department of Corrections of Illinois. 434 U.S. 257. 264. 98 S.Ct. 556, 54 L.Ed.2d 52 (1978); Baker v. Raulie. 879 F.2d 1396. 1398 (6th Cir.1989) (per curiam); McMillan v. Barksdale. 823 F.2d 981. 982 (6th Cir.1987); Myers v.Ave Hardware. 777 F.2d 1099, 1102 (6th Cir.1985] Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016. 1018 (6th Cir. 1983).

Ohio v. Ealy. 3:09-cv-99, 2009 WI. 1886138. at *1 (S.D. Ohio June 23, 2009). Because the time to file a Notice of Appeal is mandatory and jurisdictional, the Court cannot grant Petitioner's request.¹ Petitioner did not file his Notice of Appeal within thirty days of the Judgment being appealed. See, e.g., Garrett v. Presesnik. No. 09-cv-11076. 2012 WL 2342461, at *4 (E.D. Mich. May 4. 20l2)(citing 28 U.S.C. § 2107(a): Bowles v. Russell. 432 F.3d 668. 673 (6th Cir. 2005)(foot omitted)).

Thai said, the prison mailbox rule, under which the Notice of Appeal is deemed to have been filed on the date Petitioner submitted the document to prison officials for mailing, applies. See, e.g., Keeling v. Warden. Lebanon Carre c lional Inst., 673 F.3d 452, 456 (6^th Cir. 2012)(citing Cook v. Stegall. 295 F.3d 517. 521 (6th Cir. 2002) (Houston v. Lack. 487 U.S. 266, 273 (1988)). This Court is unable to determine the date that Petitioner submitted his Notice of Appeal to prison officials for filing. Petitioner does not indicate that date that he signed or sent the Notice of Appeal, see ECF# 18. and it is possible that he did so prior to the expiration of time for filing an appeal. ECF #18.

Nonetheless. Petitioner has forfeited his right to appeal, in any event, by failing to provide a specific basis for his objections to the Magistrate Judge's Report and Recommendation. See Mink v. Mingo. No. 13-77-DBL-CJS. 2013 WL 3733497, at *3 (E.D. Ky. July 16, 2013)(A general objection that does not "specify the issues of contention" is not sufficient to satisfy the requirement of a written and specific objection. Miller v. Currie. 50 F.3d 373. 380 (6th Cir. 1995) (citing Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991)).

Even if he had not. the record fails to reflect that a certificate of appealability is warranted.

When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a 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). See 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, a certificate of appealability "should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition stales 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 court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.

Petitioner has failed to establish either that reasonable jurists would find it debatable whether the petition states valid claim of the denial of a constitutional right or that the Court was correct in its procedural rulings.

The Court, therefore DENIES Petitioner's request for a certificate of appealability, ECF # 18.

The Court must also consider whether Petitioner may proceed in forma pauperis on appeal. Although Petitioner previously was granted in forma pauperis status, he has forfeited his right to appeal and failed to file a timely appeal. The Court therefor CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any application by Petitioner to proceed on appeal in forma pauperis, the appeal would not be taken in "good faith." The Court therefore DENIES Petitioner leave to appeal in forma pauperis. Fed. R.App. P. 24(a)(3)(A): Kincade v. Sparkman. 117 F.3d 949, 952 (6th Cir. 1997).

WHEREUPON. Petitioner's request for a certificate of appealability. ECF #18, is DENIED. In forma pauperis status for purposes of the appeal likewise is DENIED.

IT IS SO ORDERED.

___________________

JAMES L. GRAHAM

United Stales District Judge

1. It does not appear that Petitioner can meet the requirements for extending the time period to file an appeal: Rule 4(a)(5): (6) provide:

5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by Ibis Rule 4(a) expires; and

(ii) (ii) regardless of whether its motion is filed before or during the 30 days alter the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion tiled before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte...