Akemon v. Brunsman

Full title: La'MON AKEMON, Petitioner v. TIMOTHY BRUNSMAN, Respondent

Court: United States District Court, S.D. Ohio, Western Division

Date published: Apr 17, 2008

C-1-06-166 (S.D. Ohio Apr. 17, 2008)

Opinion

C-1-06-166.

April 17, 2008

ORDER

HERMAN WEBER, District Judge

The matter is before the Court upon the Report and Recommendation of the Magistrate Judge (doc. no. 27) recommending that Petitioner's Motion for Relief from Judgment (doc. no. 20) be denied and that further proceedings upon the Motion are not warranted under the circumstances of this case.

The Court finds that the Magistrate 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 petitioner, this Court accepts the Report as uncontroverted.

The Court accepts the factual findings and legal reasoning of the Magistrate Judge and hereby ADOPTS AND INCORPORATES BY REFERENCE into this Order his Report and Recommendation dated March 1, 2008 (doc. No. 27).

Petitioner's Motion under Fed.R.Civ.P. 60(b)(6) for relief from judgment (doc. no. 20) is DENIED and this matter is TERMINATED on the docket of this Court.

A certificate of appealability shall not issue with respect to the denial of petitioner's Motion for Relief from Judgment because petitioner has failed to make a substantial showing of the denial of a constitutional right remediable in this federal habeas corpus proceeding. See 28 U.S.C. § 2253; Fed.R.App.P. 22(b). Petitioner has not shown that reasonable jurists could debate whether this claim should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 323-324 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)) (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).

With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court CERTIFIES pursuant to 28 U.S.C. § 1915(a) 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 (6^th Cir. 1997).

IT IS SO ORDERED.

Exhibit