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Hess v. Tennis

April 4, 2007

CHRISTOPHER R. HESS, PETITIONER
v.
MAJOR FRANK TENNIS, ET AL., RESPONDENTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 4th day of April, 2007, upon consideration of the report and recommendation of the magistrate judge (Docs. 87, 103), recommending that the petition for writ of habeas corpus (Doc. 1) be denied,*fn1 to which objections were filed (Docs. 90, 104), and, following an independent review of the record, it appearing that both of petitioner's properly-exhausted claims fail on the merits,*fn2 and the court finding that petitioner's remaining claims are procedurally defaulted because all further relief in state court is time-barred, see Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."), and that petitioner has neither established "cause and prejudice" nor a "fundamental miscarriage of justice" sufficient to permit the court to reach the merits of his defaulted claims,*fn3 it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Docs. 87, 103) is ADOPTED.*fn4

2. The petition for writ of habeas corpus (Doc. 1) is DENIED.

3. A certificate of appealability is DENIED. See 28 U.S.C. § 2253(c).

4. The Clerk of Court shall CLOSE ...


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