Opinion
Case Number: 1:09cv42.
February 2, 2010
ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate Judge Timothy S. Hogan filed on January 8, 2010 (Doc. 8), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed.R.Civ.P. 72(b) expired January 29, 2010, hereby ADOPTS said Report and Recommendation.
Accordingly, respondent's motion to dismiss (Doc. 7) is GRANTED and the petition (Doc. 1) is dismissed WITHOUT PREJUDICE to refiling after petitioner has exhausted his state court remedies.
A certificate of appealability will not issue under the standard set forth in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), because "jurists of reason" will not find it debatable whether this Court is correct in its procedural ruling that petitioner has failed to exhaust state remedies and that this case will be dismissed without prejudice pending exhaustion of such remedies.
With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court will certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation will 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).
IT IS SO ORDERED.