Summary
finding petitioner's legal sufficiency claim procedurally barred under the adequate and independent state ground doctrine where petitioner failed to renew his motion after he presented evidence
Summary of this case from Bryant v. LempkeOpinion
06-CV-00842A.
June 30, 2008
ORDER
On December 20, 2006, the petitioner, Richard Mills, filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1), on June 12, 2007. On May 14, 2008, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that the petition be denied.
Petitioner filed objections to the Report and Recommendation on May 21, 2008. Respondent filed a response to the objections on June 19, 2008.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, the Court denies the petition for a writ of habeas corpus. The Clerk of Court shall take all steps necessary to close the case.
The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and therefore denies his motion for a certificate of appealability. 28 U.S.C. § 2253(c)(2).
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith, and therefore denies leave to appeal in forma pauperis. Further requests to proceed on appeal in forma pauperis must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.