McElwain #324700 v. Burt

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 24 ; respondent's motion to dismiss for failure to comply with the statute of limitations 23 is granted; habeas corpus petition is dismissed; a certificate of appealability is denied; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BENNIE McELWAIN, Petitioner, Case No. 1:05-cv-828 v. HONORABLE PAUL L. MALONEY SHERRY BURT, Respondent, _______________________________/ ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION The Court has reviewed the Report and Recommendation (Dkt. #24) filed by United States Magistrate Judge Ellen S. Carmody in this action. The Report and Recommendation was duly served on the parties. No objections have been filed. ACCORDINGLY, the Report and Recommendation is hereby adopted as the opinion of the Court. THEREFORE, IT IS ORDERED that Respondent's Motion to Dismiss for Failure to Comply with the Statute of Limitations (Dkt. #23) is GRANTED for the reasons stated in the Report and Recommendation.. IT IS FURTHER ORDERED that the habeas corpus petition (Dkt. #1) is DISMISSED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. This action is terminated.

Date: March 5, 2009

/s/ Paul L. Maloney Paul L. Maloney Chief United States District Judge