Opinion
Case No. 1:11cv312
07-06-2012
Jaydee Thompson, Petitioner, v. Warden, Warren Correctional Institution, Respondent.
Judge Michael R. Barrett
ORDER
This matter is before the Court on the Report and Recommendation filed by the Magistrate Judge on April 23, 2012 (Doc. 9).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). No objections to the Magistrate Judge's Report and Recommendation have been filed.
Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice.
A certificate of appealability will only be issued with respect to whether petitioner's trial counsel provided ineffective assistance by failing to object to the prosecutor's challenged remark in closing argument essentially vouching for the credibility of the State inmate witnesses. A certificate of appealability will not issue with respect to petitioner's remaining allegations of ineffective assistance, because they do not rise to the level of a "viable claim of the denial of a constitutional right" and are not "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 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)(3) that an appeal of any Order adopting this Report and Recommendation would be taken in "good faith," and therefore would GRANT petitioner leave to 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).
IT IS SO ORDERED.
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Michael R. Barrett
United States District Judge