McComb v. Marion Correctional Institution, Warden

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

DAMITREE MCCOMB . Petitioner, Case No. 3:24-cv-123 V. : Judge Walter H. Rice WARDEN, MARION Magistrate Judge Kimberly A. Jolson CORRECTIONAL INSTITUTION, Respondent.

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #14), TO WHICH PETITIONER DAMITREE MCCOMB DID NOT OBJECT; PETITION FOR WRIT OF HABEAS CORPUS (DOC. #1) IS DISMISSED WITH PREJUDICE; JUDGMENT SHALL ENTER IN FAVOR OF RESPONDENT WARDEN, MARION CORRECTIONAL INSITUTION, AND AGAINST PETITIONER; ORDER THAT A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; CERTIFICATION THAT ANY APPEAL OF THE INSTANT DECISION AND JUDGMENT WOULD BE OBJECTIVELY FRIVOLOUS UNDER THE LAW AND THAT PETITIONER SHOULD NOT BE PERMITTED LEAVE TO PROCEED ON APPEAL /N FORMA PAUPERIS; TERMINATION ENTRY

This matter is before the Court on the Petition for Writ of Habeas Corpus of Petitioner Damitree McComb. (Doc. #1). On June 25, 2025, Magistrate Judge Kimberly A. Jolson filed a Report and Recommendations (Report, Doc. #14), recommending that: (1) the Petition be denied; (2) the Court deny Petitioner a certificate of appealability; and (3) certify to the United States Court of Appeals for the Sixth Circuit that any appeal would be objectively frivolous under the law, and

that Petitioner should not be permitted leave to proceed on appeal in forma pauperis. (/d. at PAGEID 791-92). Petitioner did not object to the Report, and the time for doing so has expired. (/a. at PAGEID 792-93, citing Fed.R.Civ.P. 72(b)). Based upon reasoning and citations of authority set forth in the Report, a de

novo review of the parties’ filings, and a review of the applicable law, this Court ADOPTS the Report and Recommendations. The Court, in so doing, DISMISSES WITH PREJUDICE the Petition for Writ of Habeas Corpus. (Doc. #1). Judgment shall enter in favor of Respondent Warden, Marion Correctional Institution, and against Petitioner. The Court declines to issue to Petitioner a certificate of appealability, as Petitioner's ground for relief is time-barred, Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), and Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 8 2253(c)(2). The Court certifies

to the Sixth Circuit that any appeal from the instant decision and judgment would be objectively frivolous under the law, and that Petitioner should not be permitted to proceed on appeal jn forma pauperis. McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 203, 224 (2007). The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

IT IS SO ORDERED

Date: September 3, 2025 (Sorni” Raca WALTER H. RICE UNITED STATES DISTRICT JUDGE