Opinion
C-1-05-513.
June 28, 2006
ORDER
This matter was referred pursuant to 28 U.S.C. § 636 to the United States Magistrate Judge for consideration and report on the Petition for Writ of Habeas Corpus filed by the petitioner pursuant to 28 U.S.C. § 2254. The matter is before the Court upon the Report and Recommendation of the Magistrate Judge (doc. no. 8) recommending that respondent's Motion to Dismiss (doc. no. 6) be granted and petitioner's Petition for Writ of Habeas Corpus (doc. no. 1) be dismissed to which neither party has objected.
Upon a de novo review of the record, the Court finds that the Magistrate Judge has accurately set forth the applicable law and has properly applied it to the particular facts of this case. Accordingly, in the absence of any objection by petitioner, this Court accepts the Report as uncontroverted.
Accordingly, the Court accepts the factual findings and legal reasoning of the Magistrate Judge and hereby ADOPTS AND INCORPORATES BY REFERENCE into this Order his Report and Recommendation dated May 2, 2006. Respondent's Motion to Dismiss (doc. no. 6) is GRANTED and petitioner's Petition for Writ of Habeas Corpus (doc. no. 1) is DENIED.
A certificate of appealability shall issue with respect to this Order dismissing the petition with prejudice on procedural statute of limitations grounds, because under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would "find it debatable whether this Court is correct in its procedural ruling" and whether the otherwise-barred grounds for relief state "viable claim[s] of the denial of a constitutional right" or are "adequate to deserve encouragement to proceed further." 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).
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, GRANTS 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).
This case is DISMISSED AND TERMINATED on the docket of this Court.
IT IS SO ORDERED.