Opinion
Case No. 1:09-cv-508.
September 8, 2010
ORDER
This matter is before the Court on the Magistrate Judge's Report and Recommendation filed August 17, 2010 (Doc. 14).
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 as follows:
1. Respondent's motion to dismiss is GRANTED and the petition is DISMISSED with prejudice on the ground that it is barred from review under the one-year statute of limitations set forth in 28 U.S.C. § 2244(d);
2. A certificate of appealability will not issue with respect to the petition, which this Court has concluded is barred by the statute of limitations, because under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether the Court is correct in its procedural ruling;
3. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of the Judgment filed simultaneously with this Order adopting would not be taken in "good faith" and, therefore, DENIES petitioner leave to proceed on appeal in forma pauperis. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
Date: September 8, 2010