Lanier v. Kerns, No. 4:2008cv03033 - Document 28 (N.D. Ohio 2009)

Court Description: MEMORANDUM OPINION & ORDER adopting Report and Recommendation in it's entirety. The Court denies Petition for writ of habeas corpus. Motion for evidentiary hearing also denied. Petitioner has failed to show the existence of any set of fac ts upon which he could prevail. Accordingly, pursuant to 28 USC 1915(a)(3), the Court certifies that an appeal of this action could not be taken in good faith. Petitioner has failed to make a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue.Judge Jack Zouhary on 12/29/09. (B,CJ)

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Lanier v. Kerns Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION Antwon Lanier, Case No. 4:08 CV 3033 Petitioner, MEMORANDUM OPINION AND ORDER -vsJUDGE JACK ZOUHARY Phillip Kerns, Warden, Respondent. Petitioner Antwon Lanier, a prisoner in state custody, filed a Petition for a Writ of Habeas Corpus (Doc. No. 1). The case was referred to United States Magistrate Judge William Baughman, Jr. for a Report and Recommendation (R&R) pursuant to Local Rule 72.2(b)(2). The Magistrate Judge filed the R&R on December 8, 2009 (Doc. No. 27). Under the relevant statute: 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. 28 U.S.C. § 636(b)(1)(C). The ten-day period 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 an issue covered in the report. United States v. Sullivan, 431 F.3d 976, 984 (2005). Dockets.Justia.com The Court has reviewed the R&R, and having found it legally and factually accurate, adopts the R&R in its entirety. Therefore, the Court denies the Petition for Writ of Habeas Corpus (Doc. No. 1). The Motion for Evidentiary Hearing (Doc. No. 25) is also denied. 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)(3), 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, no certificate of appealability shall issue. IT IS SO ORDERED. s/ Jack Zouhary JACK ZOUHARY U. S. DISTRICT JUDGE December 29, 2009 2

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