Gibson v. Warden Hocking Correctional Facility, No. 1:2010cv00008 - Document 15 (S.D. Ohio 2011)

Court Description: OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 12 Report and Recommendation in its entirety. Petitioner's habeas corpus petition is DENIED WITH PREJUDICE. Further, the Court FINDS that a certificate of appealability should not is sue with respect to the claims alleged in the petition and CERTIFIES that an appeal of this Order would not be taken in good faith, therefore denying Petitioner leave to appeal in forma pauperis. Signed by Judge S Arthur Spiegel on 4/13/2011. (km1) (Additional attachment(s) added on 4/13/2011: # 1 Certified Mail Receipt) (km1).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION KENNETH W. GIBSON, : : : : : : : : : : : Petitioner, v. WARDEN, HOCKING CORRECTIONAL FACILITY, NO. 1:10-CV-00008 OPINION AND ORDER Respondent. This matter is before the Court on the Magistrate Judge s Report and Recommendation, (doc. 12), to which no objections were filed. Petitioner respect to his filed 2007 a plea petition and for habeas sentencing for corpus with involuntary manslaughter and corrupting another with drugs, for which he was sentenced to concurrent eight-year terms of imprisonment to be served consecutively to a three-year term in another case (doc. 12). He presents two grounds for relief in his petition: first, the trial court erred when it refused to allow Petitioner to withdraw his guilty plea; and second, he received ineffective assistance of trial counsel (doc. 2). The Magistrate Judge determined that Petitioner s claim regarding the refusal to allow him to withdraw his guilty plea raises issues of state law only, which are not cognizable here (doc. 12). Further, the Magistrate Judge concluded that the underlying claims of constitutional error are barred from review by this Court because they are time-barred. Consequently, the Magistrate Judge recommends that Petitioner s petition be denied with prejudice; that a certificate of appealability not issue; and that the Court certify that any appeal would not be taken in good faith. Having reviewed this matter pursuant to 28 U.S.C. §636(b), the Court finds no clear error on the face of the record and, indeed, finds the Report and Recommendation to be thorough, well-reasoned and correct. See Advisory Committee Notes to Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 150(1985)( It does not appear that Congress intended to require district court review of a magistrate judge s factual or legal conclusions, under a de novo or any other findings ). standard, when Accordingly, neither the party Court ADOPTS objects and to those AFFIRMS the Magistrate Judge s Report and Recommendation in its entirety (doc. 12). Therefore, Petitioner s habeas corpus petition is DENIED WITH PREJUDICE. Further, the Court FINDS that a certificate of appealability should not issue with respect to the claims alleged in the petition because jurists of reason would not find it debatable whether this Court is correct in its procedural rulings and because Petitioner has failed to make a substantial showing of the denial of a constitutional right. -2- Slack v. Daniel, 529 U.S. 473 (2000). Finally, the Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any application by Petitioner to proceed on appeal in forma pauperis, an appeal of this Order would not be taken in good faith and therefore Petitioner leave to appeal in forma pauperis. the Court DENIES Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). SO ORDERED. Dated: April 13, 2011 /s/ S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge -3-

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