Opinion
Case Number: 1:07cv977.
November 24, 2009
ORDER
This matter is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Timothy S. Black. Pursuant to such reference, the Magistrate Judge issued an Order resolving petitioner's non-dispositive motions (Doc. 53). The Magistrate Judge also reviewed the pleadings and filed with this Court on July 9, 2009 a Report and Recommendation to deny petitioner's amended habeas petition with prejudice (Doc. 54). Subsequently, the petitioner filed objections to both the Order (Doc. 58) and the Report and Recommendation (Doc. 62).
The Court has reviewed the petitioner's non-dispositive motions (Doc. 20, 26, 28, 31, 41, 43, 45, 47, 49, 50 and 51), the Magistrate Judge's Order on those motions and petitioner's objection thereto. Petitioner has not shown that the Magistrate Judge's Order on the non-dispositive motions was clearly erroneous or contrary to the law. The Court therefore declines to reconsider those motions.
With respect to the Report and Recommendation, the Court has reviewed the comprehensive findings of the Magistrate Judge in the Report and Recommendation, considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court does determine that such Recommendation should be adopted.
Accordingly, petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended ( see Docs. 1, 25, 33) is DENIED with prejudice.
A certificate of appealability will not issue on any of the claims alleged in Grounds "B" and "C" of the petition that are waived and thus procedurally barred from review, because under the first prong of the two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" will not find it debatable whether the Court is correct in its procedural ruling.
A certificate of appealability also will not issue with respect to the double jeopardy claims alleged in Ground "A" and a portion of Ground "B", the claims alleged in Grounds "B" and "D" challenging petitioner's sentences, the claim alleged in Ground "B" challenging the trial court's refusal to give a lesser offense instructions, and the undefaulted judicial misconduct claims alleged in Ground "C". Reasonable jurists will not find it debatable whether any of these claims should have been resolved in a different manner or, alternatively, whether the issues presented are "adequate to deserve encouragement to proceed further." Miller v. El-Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack, 529 U.S. at 484); see also 28 U.S.C. § 2253(C); Fed.R.App.P. 22(b).
A certificate of appealability, however, will issue with respect to the undefaulted prosecutorial misconduct claim alleged in Ground "C", which was addressed on the merits herein, because reasonable jurists will find it debatable whether that claim should have been resolved in a different matter. See id.
With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court will certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation will be taken in "good faith," and therefore, GRANT 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).
Petitioner's motions to further supplement the record (Docs. 55 and 56) are DENIED AS MOOT.
IT IS SO ORDERED.