Opinion
Case Number: 1:11cv690
01-02-2013
Armando Rivera, Petitioner(s), v. Warden, Chillicothe Correctional Institution, Respondent(s).
Chief Judge Susan J. Dlott
ORDER
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 J. Gregory Wehrman. Pursuant to such reference, the Magistrate Judge reviewed the pleadings and filed with this Court on August 20, 2012 a Report and Recommendation (Doc. 8). Subsequently, the petitioner filed objections to such Report and Recommendation (Doc. 11).
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 Recommendation should be adopted.
Accordingly, petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice.
A certificate of appealability will not issue in this case because petitioner has not stated a "viable claim of the denial of a constitutional right" that may be remedied in this federal habeas proceeding, nor are the issues presented "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (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 any Order adopting the Report and Recommendation will 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 (6th Cir. 1997).
IT IS SO ORDERED.
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Chief Judge Susan J. Dlott
United States District Court