Smith v. Warden, Lebanon Correctional Institution

Filing 30

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 28 Report and Recommendation in all respects, denying 25 Petitioner's Motion to Stay, denying as moot 26 Petitioner's Motion for Leave to Proceed in forma pauperis. The Court D ENIES WITH PREJUDICE Petitioner's Petition for Writ of Habeas Corpus Under 28 USC Section 2254. The Court further FINDS that a certificate of appealability should not issue in this matter and CERTIFIES that any appeal to this Order would not be taken in good faith; therefore, any application made to this Court to appeal in forma pauperis will be DENIED. Signed by Judge S Arthur Spiegel on 2/7/2012. (km1) (Additional attachment(s) added on 2/8/2012: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER L. SMITH,
Petitioner,
v.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

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NO. 1:10-CV-00780

ORDER

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation dated November 17, 2011 (doc. 28).
Proper notice was given to the parties, including Petitioner, as
required under 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P.
72(b)(1)-(2). Said notice included an admonition that a failure to
file objections to the Report and Recommendation in a timely manner
“may forfeit rights on appeal” (doc. 21 at 3 (citing Thomas v. Arn,
474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 950
(6th Cir. 1981) (“[A] party shall file objections with the district
court or else waive right to appeal.”)).

To date, no objections

have been filed.

The Magistrate Judge recommends that Petitioner’s motion
for a stay of the instant action be denied, that his petition for
a writ of habeas corpus be denied with prejudice, and that his
motion for leave to proceed in forma pauperis be denied as moot.
With regard to the writ itself, the Magistrate Judge concluded that

Petitioner had procedurally defaulted his four claims for relief
and had not demonstrated cause therefor or shown that a fundamental
miscarriage of justice would result if these claims were not
considered

on

their

merits.

Although

no

party,

including

Petitioner, objected to any portion of her report or her proposed
recommendations, out of an abundance of caution we nonetheless
conducted a de novo review.

28 U.S.C. § 636(b)(1)(C).

Because we

find said Report and Recommendation to be thorough, well-reasoned,
and correct, we ADOPT AND AFFIRM it in all respects.

Thus, we DENY Petitioner’s Motion to Stay (doc. 25), we
DENY WITH PREJUDICE Petitioner’s Petition Under U.S.C. § 2254 for
Writ of Habeas Corpus (doc. 1), and we DENY AS MOOT
Motion to Proceed in forma pauperis (doc. 26).

Petitioner’s

We further FIND

that a certificate of appealability should not issue in this
matter, under the standard set forth in Slack v. McDaniel, 529 U.S.
473, 484-85 (2000), as “jurists of reason” would not find it
debatable that this Court, having applied the procedural default
doctrine, is correct in deciding that it is barred from reviewing
the instant petition because Petitioner has waived the grounds set
forth within.

In addition, we CERTIFY, pursuant to 28 U.S.C. §

1915(a)(3), that any appeal of this Order would not be taken in
good faith; therefore, any application made to this Court to appeal
in forma pauperis upon a showing of financial necessity will be
DENIED.

See Fed. R. App. P. 24(a)(3)(A); Kincade v. Sparkman, 117

F.3d 949, 952 (6th Cir. 1997).

SO ORDERED.

Dated: February 7, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge