Smith v. Warden, Lebanon Correctional Institution

Filing 24

ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS; denying 14 Motion to Amend Petition; this matter is closed. Signed by Judge Michael R. Barrett on 2/27/2009. (Attachments: # 1 Certified Mail Receipt) (ba1, )

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Angelo Smith, Petitioner, v. Timothy Brunsman, Warden, Respondent. Case No. 1:07cv878 Judge Michael R. Barrett ORDER This matter is before the Court on the Report and Recommendation filed by the Magistrate Judge on December 16, 2008 (Doc. 16). Proper notice has been given to the parties under 28 U.S.C. 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Despite receviing extensions to file objections (See Docs. 19 and 22), no objections to the Magistrate Judge's Report and Recommendation have been filed. Having reviewed this matter de novo pursuant to 28 U.S.C. 636, this Court finds the Magistrate Judge's Report and Recommendation to be correct. Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 (Doc. 1) is DENIED with prejudice consistent with the opinion of the Magistrate Judge; and the Motion to Amend Petitioner (Doc. 14) is DENIED. This matter is closed. A certificate of appealability shall not issue with respect to petitioner's claims for relief under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore DENIES petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). IT IS SO ORDERED. s/Michael R. Barrett Michael R. Barrett, Judge United States District Court 2

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