Clayton #419682 v. Hofbauer

Filing 28

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 27 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION DANNY JOE CLAYTON, Petitioner, v. Case No. 2:08-cv-252 HON. R. ALLAN EDGAR GERALD HOFBAUER, Respondent. _____________________________________/ MEMORANDUM AND ORDER Petitioner Danny Joe Clayton, a Michigan state prisoner in the custody of the Michigan Department of Corrections, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. On August 25, 2011, Magistrate Judge Timothy P. Greeley submitted his report and recommendation. [Court Doc. No. 27]. It is recommended that the habeas petition be denied and dismissed with prejudice, and that a certificate of appealablity be denied under 28 U.S.C. § 2253(c)(2). Petitioner Clayton has not timely filed any objections to the report and recommendation. After reviewing the record, the Court ACCEPTS and ADOPTS the report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and W.D. Mich. LCivR 72.3(b). The Court concludes that the habeas petition brought under 28 U.S.C. § 2254 is without merit. The habeas petition shall be DENIED and DISMISSED WITH PREJUDICE. If petitioner Clayton files a notice of appeal, it will be treated as an application for a certificate of appealability which shall be DENIED pursuant to 28 U.S.C. § 2253(c)(2); Fed. R. App. 1 P. 22(b)(1); and Slack v. McDaniel, 529 U.S. 473, 484 (2000), for the same reasons expressed in the report and recommendation. Petitioner Clayton has not made a substantial showing of the denial of a federal constitutional right. Reasonable jurists could not find that dismissal of the habeas petition is debatable or erroneous. A separate judgment will enter. SO ORDERED. Dated: September 16, 2011. /s/ R. Allan Edgar R. ALLAN EDGAR UNITED STATES DISTRICT JUDGE 2

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