Johnson v. Weber et al

Filing 22

ORDER adopting 20 Report and Recommendation; denying 21 Objection to Report and Recommendation. Certificate of Appealability issued as to Count One regardign double jeopardy, declining to issue certificate of appealability for the remaining issues. Signed by U.S. District Judge Lawrence L. Piersol on 3/24/14. (SLW)

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION FILED MAR 2 4 2014 ~~ *************************************************** * FRED JOHNSON, CIV.II-4032 * * Petitioner, * * vs. ORDER * * DARIN YOUNG, Warden; and * MARTY JACKLEY, Attorney General * of the State of South Dakota, * * Respondents. * * *************************************************** Petitioner Fred Johnson, an inmate at the South Dakota State Penitentiary, has applied for a Writ of Habeas Corpus pursuant to 28 U.S.c. ยง 2254. The Magistrate Judge issued a Report and Recommendation recommending that the Petition be dismissed with prejudice. The Petitioner has filed Objections to the Report and Recommendation. After conducting an independent review ofthe record, the Court agrees with the Magistrate Judge. Accordingly, IT IS ORDERED: 1. That the Petitioner's Objections (Doc. 21) are DENIED, and the Magistrate Judge's Report and Recommendation (Doc. 20) is ADOPTED. 2. That Respondents' request to dismiss the Petition (Doc. 13) is GRANTED. 3. That Petitioner's Application for Writ of Habeas Corpus (Doc. 1) is DISMISSED with prejudice. 4. That a Certificate of Appealability shan not issue except as to Claim One regarding double jeopardy, a Certificate of Appealability shall issue for the reasons stated in Justice Sabers in his dissent on that issue in State v. Johnson, 739 N.W. 2d 1, l3-14 (S.D. 2007). Dated this 24th day of March, 2014. BY THE COURT: l~SOL {hWAlU. wrence L. Piersol United States District Judge ATTEST: JOSEPH HAAS, CLERK B~1Liflti Duty

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