Opinion
C-1-04-612.
September 13, 2006
ORDER
This matter is before the Court upon the Report and Recommendation of the United States Magistrate Judge (doc. no. 30) to which neither party has objected.
Upon a de novo review of the record, the Court finds that the Judge has accurately set forth the applicable law and has properly applied it to the particular facts of this case. Accordingly, in the absence of any objection by plaintiff, this Court accepts the Report as uncontroverted.
The Report and Recommendation of the United States Magistrate Judge (doc. no. 30) is hereby ADOPTED AND INCORPORATED HEREIN BY REFERENCE. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. no. 1) is DENIED WITH PREJUDICE.
A certificate of appealability shall not issue with respect to Grounds One, Two, and Three of the petition, which this Court has concluded are waived and thus barred from review on procedural grounds, 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 this Court is correct in its procedural ruling" as required under the first prong of the Slack standard. In addition, a certificate of appealability shall not issue with respect to the claim alleged in Ground Four of the petition because petitioner has failed to make a substantial showing of the denial of a constitutional right based on this claim. See 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
Because this Court finds that petitioner has not met the first prong of the Slack standard, it need not address the second prong of Slack as to whether "jurists of reason" would find it debatable whether petitioner stated a valid constitutional claim. See Slack, 529 U.S. at 484.
The Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith" and, therefore, DENIES petitioner leave to proceed on 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).
This case is DISMISSED AND TERMINATED on the docket of this Court.
IT IS SO ORDERED.