Opinion
Case No. 1:08-cv-433.
October 15, 2009
ORDER
This matter is before the Court on the Magistrate Judge's Report and Recommendation filed September 24, 2009 (Doc. 90).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). As of the date of this Order, no objections to the Magistrate Judge's Report and Recommendation have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C. § 636, we find the Magistrate Judge's Report and Recommendation correct.
Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. Petitioner's petition for writ of habeas corpus is DENIED with prejudice.
A certificate of appealability will not issue with respect to the claims alleged in the petition, which this Court has concluded are waived and thus barred from review on procedural grounds, because "jurists of reason would not find it debatable as to whether this Court is correct in its procedural rulings" under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
A certificate of appealability also will not issue with respect to the Fourth Amendment claim alleged in Ground Eight of the petition, which is not cognizable under Stone v Powell, 428 U.S. 465, 494-95 (1976), or with respect to any of petitioner's claims that were addressed on the merits in the Report Recommendation; a certificate of appealability will not issue because petitioner has not shown that reasonable jurists could debate whether any such claims should have been resolved in a different manner or that the issues presnted are "adequate to deserve encouragement to proceed further." See Miller-El v. Cockrell, 537 U.S. 322, 323-324 (2003) (quoting Slack, 529 U.S. at 483-84 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)); see also 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
This Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) an appeal of this Order would not be taken in good faith, and therefore DENIES petitioner leave to appeal in forma pauperis. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
This action is closed.