Black v. State of Ohio

Filing 23

ORDER ADOPTING 15 REPORT AND RECOMMENDATION; Petitioner's writ of habeas corpus is denied; denying 11 Motion to Stay. Signed by Judge Michael R. Barrett on 3/31/2010. (Attachments: # 1 Certified Mail Receipt) (ba1)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO W ESTERN DIVISION
D a ryl Black, P e t i ti o n e r , v. S tate of Ohio, et al., Respondents. C a s e No. 1:09cv171 J u d g e Michael R. Barrett

ORDER
T h is matter is before the Court on the Report and Recommendation filed by the M a g is tra te Judge on February 2, 2010 (Doc. 15). Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including n o tice that the parties would waive further appeal if they failed to file objections to the Report a n d Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th C ir. 1981). Plaintiff filed timely Objections to the Magistrate Judge's Report and

R e c o m m e n d a tion . (Doc. 22.)

Having reviewed this matter de novo pursuant to 28 U.S.C. 636 and Plaintiff's Objections, this Court finds the Magistrate Judge's Report and Recommendation to be correct.
A c c o rd in g ly, it is ORDERED that the Report and Recommendation of the Magistrate J u d g e is hereby ADOPTED. Petitioner's petition for writ of habeas corpus pursuant to 28 U .S .C . § 2254 is DENIED with prejudice; Petitioners' Motion for Stay (Doc. 11) is DENIED. A certificate of appealability will not issue with respect to the ineffective assistance of c o un s el claim sought by Petitioner under the applicable two-part standard enunciated in Slack v . McDaniel, 529 U.S. 473, 484-85 (2000). A certificate of appealability will not issue with

re s pe c t to Petitioner's remaining claim challenging the weight and sufficiency of evidence b e c a u s e there is no showing of the denial of any constitutional right. See id. at 475 (citing B a refo o t v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. A p p . P. 22(b). W ith respect to any application by petitioner to proceed on appeal in forma pauperis, th e Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting th is Report and Recommendation would not be taken in "good faith," and therefore DENIES p e titio n er 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 U n ite d States District Judge

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