Hall v. Sorrell

Filing 26

ORDER AFFRIMING, APPROVING and ADOPTING 24 Magistrate Judge's Report and Recommendation for 6 Petition for Writ of Habeas Corpus (2254), and 15 Motion to Dismiss. ORDERED: 6 PETITION for Writ of Habeas Corpus DENIED. 15 MOTION to Dis miss without Prejudice GRANTED. The Court denies petitioner a certificate of appealability because the petitioner failed to make a substantial showing of a denial of a constitutional right. It is further certified that any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. Signed by Judge J. Garvan Murtha on 4/28/2010. (kak)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

VICTOR G. HALL, Petitioner v. WILLIAM H. SORRELL, Respondent

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File No. 1:09-cv-291

ORDER The Magistrate Judge's Report and Recommendation was filed April 7, 2010. (Doc. 24.) The Petitioner filed a letter response (Doc. 25) wherein he offers his view of the facts but does not contest the legal analysis or disposiiton recommended by Magistrate Judge Conroy. After de novo review, the Report and Recommendation is AFFIRMED, APPROVED and ADOPTED. See 28 U.S.C. § 636(b)(1). Respondent's motion to dismiss without prejudice (Paper 15) is GRANTED. Petitioner's habeas petition filed pursuant to 28 U.S.C. § 2254 (Paper 6) is DISMISSED without prejudice. Pursuant to Fed. R. App. P. 22(b), the Court DENIES petitioner a certificate of appealability ("COA") because the petitioner failed to make a substantial showing of a denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). In addition, because the petition has been dismissed on procedural grounds, the petitioner cannot be issued a COA due to his failure to demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000). It is further certified that any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. See 28 U.S.C. § 1915(a)(3). SO ORDERED. Dated at Brattleboro, in the District of Vermont, this 28th day of April, 2010.

/s/ J. Garvan Murtha Honorable J. Garvan Murtha Senior United States District Judge

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