Bevins v. Warden Lebanon Correctional Institution

Full title: ANDREW BEVINS, JR., Plaintiff(s), v. WARDEN LEBANON CORRECTIONAL…

Court: United States District Court, S.D. Ohio, Western Division

Date published: Jan 25, 2010

Case Number: 1:08cv520 (S.D. Ohio Jan. 25, 2010)

Opinion

Case Number: 1:08cv520.

January 25, 2010

ORDER

SUSAN DLOTT, District Judge

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. Hogan. Pursuant to such reference, the Magistrate Judge reviewed the pleadings and filed with this Court on December 17, 2009 a Report and Recommendation (Docs. 29 and 30). Subsequently, the plaintiff filed objections to such Report and Recommendation (Doc. 33).

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, in regard to the Report and Recommendation (Doc. 29), petitioner's motion for abeyance to stay the habeas corpus proceeding until petitioner exhausts a defective indictment claim in the state courts (Doc. 17) is DENIED AS MOOT.

Petitioner's motion for further expansion of the record to add a sixth ground for relief to his habeas petition alleging a defective indictment claim (Doc. 19) is DENIED.

Petitioner's supplemental motion to amend the habeas petition to add a seventh ground for relief to his habeas petition alleging the denial of assistance of counsel on appeal from his resentencing (Doc. 25) is DENIED.

Petitioner's motion to amend the petition to add "Grounds Six and Seven" (Doc. 26) is DENIED.

Accordingly, in regard to the Report and Recommendation (Doc. 30), petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice.

A certificate of appealability will not issue for the claims relating to petitioner's fourth trial asserted in Grounds Two, Three, and Five of the petition which this Court has concluded are waived and thus barred from review on procedural grounds because under the applicable twopart 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" as required under the first prong of the Slack standard. A certificate of appealability will not issue with respect to the remaining grounds of the petition because petitioner has failed to make a substantial showing of the denial of a constitutional right based on these claims. See 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).

The Court will certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting the Report and Recommendation will not be taken in "good faith" and, therefore, DENY petitioner leave to proceed on appeal in forma pauperis upon a showing of financial necessity. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6^th Cir. 1997).

IT IS SO ORDERED.

Exhibit