Opinion
No. 04-CV-74164-DT.
October 17, 2006
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING PLAINTIFF'S HABEAS CORPUS ACTION
This matter having come before the Court on the August 24, 2006 Report and Recommendation of United States Magistrate Judge Mona K. Majzoub recommending that the Court dismiss Timothy Hamilton's petition for a writ of habeas corpus, without prejudice, because of his failure to exhaust his state remedies; and Petitioner having timely filed Objections to the Report and Recommendation; and the Court having reviewed the Magistrate Judge's Report and Recommendation, the Objections thereto, and the Court's file of this action and having concluded that, for the reasons stated in the Report and Recommendation, the petition for habeas corpus relief should be dismissed; and the Court being otherwise fully advised in the premises,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation of August 24, 2006 be, and hereby is, adopted by this Court.
IT IS FURTHER ORDERED that, for the reasons set forth in the Magistrate Judge's Report and Recommendation, Timothy Hamilton's petition for habeas corpus relief be, and hereby is DISMISSED, without prejudice, because of Petitioner's failure to exhaust his state remedies.
IT IS FURTHER ORDERED that, for the reasons stated by the Magistrate Judge, pursuant to 28 U.S.C. § 2243(c), no certificate of appealability should issue for purposes of appeal of this matter. The Court will also deny Petitioner leave to appeal in forma pauperis. A habeas petitioner seeking to appeal the denial of a habeas petition will not be permitted to proceed in forma pauperis, where the appeal would be frivolous. Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999).