Day v. Konteh, No. 1:2008cv00212 - Document 20 (N.D. Ohio 2009)

Court Description: MEMORANDUM OPINION & ORDER adopting Report and Recommendation in its entirety. Petitioner's Petition for Writ of Habeas is dismissed. Petitioner has failed to show the existence of any set of facts upon which he could prevail. Accordingly , pursuant to 28 USC 1915(a), the Court certifies that an appeal of this action could not be taken in good faith. Further, as Petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. Judge Jack Zouhary on 10/13/09. (B,CJ)

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Day v. Konteh Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION James A. Day, Jr., Case No. 1:08 CV 212 Petitioner, MEMORANDUM OPINION AND ORDER -vsJUDGE JACK ZOUHARY Warden Konteh, Respondent. The Court has reviewed the Report and Recommendation of the Magistrate Judge (Doc No. 17) filed September 2, 2009. Under the relevant statute (28 U.S.C. § 636(b)(1)(C) (1982)): Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. In this case, the Court granted Petitioner an extension of time to file any objections (Doc. No. 19). This extended the time for objections until October 5, 2009. The period for objections has elapsed and no objections have been filed. The failure to file written objections constitutes a waiver of a de novo determination by the district court of issues covered in the report. United States v. Sullivan, 431 F.3d 976, 984 (2005). The Court adopts the Magistrate Judge’s Report and Recommendation (Doc. No. 17) in its entirety. Petitioner’s Petition for Writ of Habeas (Doc. No. 1) is dismissed. Dockets.Justia.com Petitioner has failed to show the existence of any set of facts upon which he could prevail. Accordingly, under 28 U.S.C. § 1915(a), the Court certifies that an appeal of this action could not be taken in good faith. Further, as Petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. IT IS SO ORDERED. s/ Jack Zouhary JACK ZOUHARY U. S. DISTRICT JUDGE October 13, 2009 2

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