Maxson v. Hofbauer

Filing 40

ORDER Adopting 38 Report and Recommendation OVERRULING PETITIONERS OBJECTIONS,AND DENYING PETITIONERS APPLICATION FOR A CERTIFICATE OFAPPEALABILITY Signed by District Judge Paul D Borman. (DGoo)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

DANIEL LEE MAXSON, II, Petitioner, vs. GERALD HOFBAUER, Respondent. ___________________________/ ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING PETITIONER'S OBJECTIONS, AND DENYING PETITIONER'S APPLICATION FOR A CERTIFICATE OF APPEALABILITY This is a habeas corpus case. On July 31, 2009, the Court issued an order denying Petitioner's Petition for Writ of Habeas Corpus. See docket entry 32. On December 31, 2009, Magistrate Judge Donald A. Scheer issued a Report and Recommendation ("R&R") in which he recommends that Petitioner's Application for a Certificate of Appealability be denied. On January 15, 2010, Petitioner filed objections to the R&R. The Court reviews de novo those portions of the R&R to which a specific objection has been made. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Having done so, the Court finds, over Petitioner's objections, that Magistrate Judge Scheer has reached the proper conclusions for the proper reasons.1 Accordingly, PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Civil Action No. 06-CV-15191

In addition to the reasons given by Magistrate Judge Scheer in his R&R, the Court notes that Petitioner wishes to appeal an issue that has recently been decided by the Sixth Circuit in Respondent's favor. See Chontos v. Berghuis, 585 F.3d 1000 (6th Cir. 2009) (clarifying that there can be no Sixth Amendment violation under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, when a trial judge finds facts that increase a minimum sentence so long as the 1

1

IT IS ORDERED that Magistrate Judge Scheer's R&R dated December 31, 2009, is accepted and adopted as the findings and conclusions of the Court. IT IS FURTHER ORDERED that Petitioner's objections to the R&R are overruled. IT IS FURTHER ORDERED that Petitioner's Application for a Certificate of Appealability is denied.

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: February 11, 2010 CERTIFICATE OF SERVICE Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on February 11, 2010. s/Denise Goodine Case Manager

sentence does not exceed the applicable statutory maximum). 2