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Freeman v. Warden

September 22, 2006

ALONZO FREEMAN, JR., PETITIONER,
v.
WARDEN, LEBANON CORRECTIONAL INSTITUTION, RESPONDENT.



The opinion of the court was delivered by: Judge Walter Herbert Rice

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #10) IN THEIR ENTIRETY; PETITIONER'S OBJECTIONS TO SAID JUDICIAL FILING (DOC. #13) OVERRULED; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER, DENYING PETITION FOR WRIT OF HABEAS CORPUS; CERTIFICATE OF APPEALABILITY TO ISSUE; LEAVE TO APPEAL IN FORMA PAUPERIS GRANTED; TERMINATION ENTRY

Based upon the reasoning and citations of authority set forth by the United States Magistrate Judge, in her Report and Recommendations filed May 11, 2006 (Doc. #10), 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. The Petitioner's Objections to said judicial filing (Doc. #13) are overruled. Judgment will enter in favor of the Respondent and against Petitioner herein, denying the Petitioner's Petition for Writ of Habeas Corpus in its entirety.

Based upon the reasoning given by the United States Magistrate Judge in her Report and Recommendations (Doc. #10 at 24-26), a Certificate of Appealability is granted on Petitioner's claims that his trial and appellate counsel provided constitutionally ineffective assistance by not raising a federal constitutional challenge to the jury instructions on felonious assault, the Court concluding that reasonable jurists could disagree with both the decision of the Ohio Court of Appeals on Petitioner's Rule 26(b) and this Court's interpretation of same. Consequently, the Petitioner has made a substantial showing of the denial of a constitutional right. Given that this issue, upon which the Certificate of Appealability has been granted, is not objectively frivolous, this Court grants Defendant leave to appeal in forma pauperis.

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.

WALTER HERBERT RICE UNITED STATES DISTRICT JUDGE

20060922

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