IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MANUEL B. PRADO, 

 CASE NO. 2:17-CV-00790 

 Petitioner, JUDGE JAMES L. GRAHAM 

 Magistrate Judge Kimberly A. Jolson 

 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. 
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 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 
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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