Ferguson #122782 v. Sherry

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION 29 ; Petitioner's petition is DISMISSED and certificate of appealability DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION

DONALD FERGUSON, Petitioner, v. JERI-ANN SHERRY, Respondent. / Case No. 2:07-CV-81 HON. GORDON J. QUIST

ORDER ADOPTING REPORT AND RECOMMENDATION The Court has before it Petitioner's Objections to the Report and Recommendation dated November 2, 2009. In his Report, the Magistrate Judge recommended that Petitioner's habeas petition be denied. Petitioner filed an objection. After conducting a de novo review, the Court concludes that the Report and Recommendation should be adopted and the petition dismissed. A District Court does not need to provide de novo review where objections to a Report and Recommendation are frivolous, conclusive, or general. See Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Here, Petitioner cites inapposite cases for irrelevant propositions. Thus, the Court will overrule Petitioner's objections. Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment

of each claim" to determine whether a certificate is warranted. Id. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined Petitioner's claims under the Slack standard. Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." For the reasons stated above, the Court finds that reasonable jurists could not find that this Court's dismissal of Petitioner's claim was debatable or wrong. Thus, the Court will deny Petitioner a certificate of appealability. Accordingly, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (Docket #29) is APPROVED AND ADOPTED as the Opinion of this Court, and Petitioner's Objection is OVERRULED. IT IS FURTHER ORDERED that Petitioner's habeas corpus petition is DISMISSED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this Court. This case is concluded.

Dated: January 8, 2010

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

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