Napier #805595 v. Rapelje

Filing 22

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 20 ; petition for habeas corpus relief 1 is DENIED; certificate of appealability is DENIED as to each issue asserted; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

VIRGIL NAPIER #805595,
Petitioner,

Case No. 1:13-cv-660

v.

HON. JANET T. NEFF

LLOYD RAPELJE,
Respondent.
_______________________________/

ORDER
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred
to the Magistrate Judge, who issued a Report and Recommendation (R & R) recommending that this
Court deny the petition. The matter is presently before the Court on Petitioner’s objections to the
Report and Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P.
72(b)(3), the Court has performed de novo consideration of those portions of the Report and
Recommendation to which objections have been made. Petitioner’s two objections merely reassert
the claims raised in his habeas petition and state no basis for rejecting the Magistrate Judge’s wellreasoned Report and Recommendation, which fully considered Petitioner’s claims in the first
instance. The Court therefore denies the objections and will enter a Judgment in this § 2254
proceeding in accordance with the Report and Recommendation. See Gillis v. United States, 729
F.3d 641, 643 (6th Cir. 2013) (requiring a separate judgment in habeas proceedings).
The Magistrate Judge also recommended that a certificate of appealability (COA) be denied.
See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue or deny a

certificate of appealability when it enters a final order”). The Court must review the issues
individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th
Cir. 2001).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484. “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. To the extent Petitioner’s claims were rejected on procedural
grounds, this Court finds that reasonable jurists would not find the Court’s procedural ruling
debatable.
“Where a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484. Upon review, this Court finds that reasonable jurists would not find the
Court’s assessment of Petitioner’s sufficiency of the evidence and evidentiary claims debatable or
wrong. A certificate of appealability will therefore be denied.
Accordingly:

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IT IS HEREBY ORDERED that the Objections (Dkt 21) are DENIED and the Report and
Recommendation of the Magistrate Judge (Dkt 20) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 1) is DENIED
for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§2253(c) is DENIED as to each issue asserted.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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Dated: August ___, 2015

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