Opinion
Case Number: 1:08cv716.
October 4, 2010
ORDER
The Court has reviewed the Report and Recommendation of United States Magistrate Judge J. Gregory Wehrman filed on July 7, 2010 (Doc. 35), 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 September 22, 2010, hereby ADOPTS said Report and Recommendation.
Accordingly, petitioner's petition for writ of habeas corpus pursuant to § 28 U.S.C. § 2254 (Doc. 3) is DENIED with prejudice.
A certificate of appealability will not issue with respect to the claim alleged in Ground Two of the petition, which this Court has concluded is waived and thus procedurally barred from review, because under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" will not find it debatable whether this Court is correct in its procedural ruling. A certificate of appealability will not issue with respect to petitioner's remaining claims alleged in Grounds One and Three through Eight of the petition, which have been addressed on the merits herein, in the absence of a substantial showing that petitioner has stated a "viable claim of the denial of a constitutional right" or that issues presented are "adequate to deserve encouragement to proceed further." See Slack, 529 U.S. at 475 (citing 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).
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 this Order adopting the Report and Recommendation will not be taken in "good faith," and therefore would DENY petitioner leave to appeal in forma paupris upon a showing of financial necessity. See Fed.R.App.P. 24(a); Kincade v. Sprkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.
Exhibit