Vanwinkle v. USA, No. 3:2008cv00415 - Document 40 (S.D. Ohio 2009)

Court Description: DECISION AND ENTRY ADOPTING INITIAL (DOC. 32 ), SUPPLEMENTAL (DOC. 34 ) AND SECOND SUPPLEMENTAL (DOC. 37 ) REPORTS AND RECOMMENDATIONS OF UNITED STATESMAGISTRATE JUDGE; DEFENDANT'S OBJECTIONS TO SAID JUDICIAL FILINGS (DOCS. 33 , #35 AND 39 ) OVERRULED; DEFENDANT'S FIRST TWO CLAIMS DISMISSED, WITH PREJUDICE, UPON THE MERITS AND AS PROCEDURALLY DEFAULTED; THIRD CLAIM DISMISSED, WITHOUT PREJUDICE, AS NOT STATING A CLAIM UPON WHICH RELIEF CAN BE GRANTED IN A SECTION 2255 PROCEEDING; D EFENDANT'S ADDED CLAIM (DOC. 36 ) DISMISSED, UPON ITS MERITS; JUDGMENT TO ENTER ACCORDINGLY, FINDING IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANT; MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS AND CERTIFICATE OF APPEALABILITY GRANTED ONLY AS TO FOURTH CLAIM, ADDED BY DOC. 36 ; REQUEST FOR APPOINTMENT OF COUNSEL DENIED; TERMINATION ENTRY. Signed by Walter H Rice on 3/30/2009. (jdf1, )

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON UNITED STATES OF AMERICA, : Plaintiff, : Case No. 3:07cr70 3:08cv415 vs. : ARTHUR L. VANWINKLE, JUDGE WALTER HERBERT RICE : Defendant. DECISION AND ENTRY ADOPTING INITIAL (DOC. #32), SUPPLEMENTAL (DOC. #34) AND SECOND SUPPLEMENTAL (DOC. #37) REPORTS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE; DEFENDANT S OBJECTIONS TO SAID JUDICIAL FILINGS (DOCS. #33, #35 AND #39) OVERRULED; DEFENDANT S FIRST TWO CLAIMS DISMISSED, WITH PREJUDICE, UPON THE MERITS AND AS PROCEDURALLY DEFAULTED; THIRD CLAIM DISMISSED, WITHOUT PREJUDICE, AS NOT STATING A CLAIM UPON WHICH RELIEF CAN BE GRANTED IN A SECTION 2255 PROCEEDING; DEFENDANT S ADDED CLAIM (DOC. #36) DISMISSED, UPON ITS MERITS; JUDGMENT TO ENTER ACCORDINGLY, FINDING IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANT; MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS AND CERTIFICATE OF APPEALABILITY GRANTED ONLY AS TO FOURTH CLAIM, ADDED BY DOC. #36; REQUEST FOR APPOINTMENT OF COUNSEL DENIED; TERMINATION ENTRY Based upon the reasoning and citations of authority set forth by the United States Magistrate Judge in his Initial (Doc. #32), Supplemental (Doc. #34) and Second Supplemental (Doc. #37) Reports and Recommendations, as well as upon a thorough de novo review of this Court s file and the applicable law, said Report and Recommendations are adopted in their entirety, and Defendant s Objections thereto (Docs. #33, #35 and #39) are overruled. Judgment will enter in favor of the Plaintiff and against Defendant, dismissing the Defendant s first and second claims set forth in his Motion to Vacate, etc., filed pursuant to 28 U.S.C. Section 2255, upon their merits and as procedurally defaulted, dismissing his third claim for relief as failing to state a claim upon which relief can be granted under Section 2255 and dismissing the fourth claim for relief, upon its merits. Given that reasonable jurists could disagree with this Court s opinion on the fourth claim for relief, that newly added by Doc. #36, this Court grants leave to Defendant to appeal in forma pauperis and, accordingly, issues a Certificate of Appealability on said fourth claim, newly added by Doc. #36. Given that this Court sees no need for an evidentiary hearing and, further, that the issues raised by the Defendant s Motion to Vacate, etc., are purely legal in nature, the Defendant s request for appointment of counsel is denied. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. /s/ Walter Herbert Rice March 30, 2009 WALTER HERBERT RICE UNITED STATES DISTRICT JUDGE -2- Copies to: Arthur L. VanWinkle, Pro Se Dwight K. Keller, Esq. -3-

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