Opinion
CIVIL ACTION NO. 03-CV-3719
April 7, 2004
ORDER
AND NOW, this 7th day of April, 2004, upon consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), the defendant's Response to Petition for Writ of Habeas Corpus (Docket No. 7), the defendant's supplemental Response to Petition for Writ Habeas Corpus (Docket No. 17), the second Report and Recommendation filed by United States Magistrate Judge Arnold C. Rapoport (Docket No. 18) and the plaintiff's objections to the second Report and Recommendation (Docket No. 19), and after a thorough and independent review of the record, it is ORDERED that:
Magistrate Judge Rapoport's first report recommended dismissing the petition because it was a mixed petition containing both exhausted and unexhausted claims. Subsequent to the filing of the report and recommendation, the petitioner formally waived his unexhausted claims in writing. (Docket No. 10). In an order dated November 24, 2003, (Docket No. 12), we remanded the case to the magistrate judge for consideration of petitioner's exhausted claim. After the defendant filed a supplemental brief addressing the merits of the petitioner's exhausted claim, Magistrate Judge Rapoport filed his second report, again recommending dismissal of the petition. The petitioner then filed objections to the second report.
1) The second Report and Recommendation of Magistrate Judge Rapoport is APPROVED and ADOPTED;
2) The Petition for Writ of Habeas Corpus is DENIED and DISMISSED; and,
3) There is no probable cause to issue a certificate of appealability.