Blair v. Michael Bowersox, No. 4:2009cv00799 - Document 23 (E.D. Mo. 2012)

Court Description: OPINION, MEMORANDUM AND ORDER-- HEREBY ORDERED that the Amended Petition of Glen Blair for a Writ of Habeas Corpus, [Doc. No. 8 ], is dismissed without further proceedings. FURTHER ORDERED that the Court will not issue a Certificate of Appealability.Signed by District Judge Henry E. Autrey on 09/06/2012. (CLK)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION GLEN BLAIR, Petitioner, vs. MICHAEL BOWERSOX, Respondent. ) ) ) ) ) ) ) ) ) Case No. 4:09CV799 HEA OPINION, MEMORANDUM AND ORDER This matter is before the Court on Magistrate Judge Adelman s Report and Recommendation of July13, 2012. Judge Adelman recommends that Petitioner s Amended Petition for Writ of Habeas Corpus, [Doc. No. 8], be dismissed. On July 24, 2012, Petitioner filed a motion for an extension of time within which to file objections. The Court granted the motion, and allowed Petitioner 30 days within which to file objections. Petitioner s objections were due August 25, 2012. As of this date, Petitioner has not filed written objections to the Report and Recommendation. Judge Adelman s Report and Recommendation contains a detailed analysis of Petitioner s petition. Judge Adelman sets out the procedural history of Petitioner s state proceedings, and recognizes the failure of Petitioner to raise his claim of the denial of due process by the admission of a videotape statement of the victim in this matter. Judge Adelman also thoroughly discusses Petitioner s claim that his counsel was ineffective by his failure to present evidence refuting the State s assertion that the victim was a good girl. This Court agrees with Judge Adelman s conclusions that Petitioner s Ground I is procedurally defaulted and that Ground II is without merit. The Court will adopt Judge Adelman s recommendation that this matter be dismissed without further proceedings. Certificate of Appeal ability The federal statute governing certificates of appealability provides that [a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. ยง 2253(c)(2). A substantial showing of the denial of a constitutional right requires that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Based on the record, a Certificate of Appealability is not warranted in this matter. Accordingly, IT IS HEREBY ORDERED that the Amended Petition of Glen Blair for a -2- Writ of Habeas Corpus, [Doc. No. 8], is dismissed without further proceedings. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. Dated this 6th day of September, 2012. HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE -3-