Opinion
Case No. 1:08-cv-819.
January 6, 2010
ORDER
This matter is before the Court on the Magistrate Judge's Report and Recommendation filed December 8, 2009 (Doc. 13).
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. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). As of the date of this Order, no objections to the Magistrate Judge's Report and Recommendation have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C. § 636, we find the Magistrate Judge's Report and Recommendation correct.
Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. Petitioner's petition for writ of habeas corpus is DENIED with prejudice.
A certificate of appealability will not issue with respect to this Order denying the claims alleged in Grounds One through Three of the petition on procedural statute of limitations grounds, because under the applicable two-part standard established in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether this Court is correct in its procedural ruling or whether petitioner has stated viable constitutional claims in the three grounds for relief.
A certificate of appealability also will not issue with respect to the remaining claims alleged in Grounds Four and Five of the petition, which are not barred from review on statute of limitations grounds and have been addressed on the merits in the Report Recommendation, in the absence of a substantial showing that petitioner has stated a "viable claim of the denial of a constitutional right" or that the issues presented are "adequate to deserve encouragement to proceed further." See Slack, 529 U.S. at 475 (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).
This Court certifies that pursuant to 28 U.S.C. § 1915(a)(3) an appeal of this Order would not be taken in good faith, and therefore DENIES petitioner leave to appeal in forma pauperis. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).