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Klein v. Leis

June 6, 2006

THOMAS KLEIN, PETITIONER,
v.
SIMON LEIS, JR., RESPONDENT.



The opinion of the court was delivered by: District Judge Susan J. Dlott

Magistrate Judge Timothy Black

SUPPLEMENTAL ORDER DENYING PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY; FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL; AND FOR STAY OF TRIAL

This matter is before the Court on pro se Petitioner Thomas Klein's Motion to Correct a Fundamental Unfairness/Manifest Injustice; Notification of Appeal of Clearly Erroneous Ruling; Application for Certificate of Appealability and Leave to Proceed in Forma Pauperis. (Doc. #28.) Petitioner requests "that a Certificate of Appealability issue" on the double jeopardy claim presented in his petition for writ of habeas corpus (doc. #3); that he be "permitted to proceed in Forma Pauperis" on appeal; and that his pending state criminal trial be "stayed" to permit proper consideration of the issues presented in his Motion. (See id. at 5-6.)

On May 30, 2006, this Court entered an Order adopting the Magistrate Judge's Report and Recommendation ("R&R") and denying Klein's habeas petition to vacate his state criminal trial, then scheduled to begin June 5, 2006. (See doc. #23.) The Court's Order did not explicitly discuss whether Klein would be entitled to obtain a certificate of appealability on his claim and/or proceed in forma pauperis for purposes of appeal. The Magistrate Judge, however, addressed both issues in his R&R and recommended as follows:

1. A certificate of appealability should not issue with respect to the claim alleged in the petition because the petitioner has failed to make a substantial showing of the denial of a constitutional right based on the claim. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

2. The Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith" and, therefore, DENY petitioner leave to proceed on appeal in forma pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). (Doc. #20 at 24-25 (paragraph numbering changed).)

Upon further review, the Court sees no reason to depart from the Magistrate Judge's analysis and conclusions as either of these issues. The Court therefore REAFFIRMS its Order adopting the Magistrate Judge's R&R (doc. #23) and accordingly DENIES Petitioner's requests for a certificate of appealability and for leave to proceed in forma pauperis on appeal. In light of these rulings and the passage of Petitioner's retrial date, the Court also DENIES AS MOOT Petitioner's request for a stay of his retrial.

IT IS SO ORDERED.

Susan J. Dlott United States District Judge

20060606

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