Fields v. Hurley

Full title: JOHNNY S. FIELDS, Petitioner v. PAT HURLEY, Respondent

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

Date published: Feb 2, 2006

No. C-1-03-605 (S.D. Ohio Feb. 2, 2006)

Opinion

No. C-1-03-605.

February 2, 2006

ORDER

HERMAN WEBER, District Judge

This matter was referred pursuant to 28 U.S.C. § 636 to the United States Magistrate Judge for consideration and report on the Petition for Writ of Habeas Corpus filed by the petitioner pursuant to 28 U.S.C. § 2254. The matter is before the Court upon the Report and Recommendation of the Magistrate Judge (doc. no. 6) recommending that the Petition for Writ of Habeas Corpus be dismissed to which neither party has objected.

Upon a de novo review of the record and in the absence of any objection by petitioner, this Court accepts the Report as uncontroverted.

Accordingly, the Court accepts the factual findings and legal reasoning of the Magistrate Judge and hereby ADOPTS AND INCORPORATES BY REFERENCE into this Order his Report and Recommendation dated December 30, 2005. The Petition for Writ of Habeas Corpus is, therefore, DENIED.

A certificate of appealability shall not issue with respect to petitioner's petition because "jurists of reason would not find it debatable as to whether this Court is correct in its procedural ruling" under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore DENIES petitioner leave to 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).

This case is DISMISSED AND TERMINATED on the docket of this Court.

IT IS SO ORDERED.