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In re Upshaw

January 9, 2007

IN RE RAYMOND L. UPSHAW,


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

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #6) IN THEIR ENTIRETY AND OVERRULING DEFENDANT'S MOTION TO OVERRULE THE DENIAL OF A BLACK MAN'S RIGHT TO A FAIR AND SPEEDY TRIAL, CONSTRUED AS AN OBJECTION TO SAID JUDICIAL FILING (DOC. #7); JUDGMENT TO ENTER IN MANNER SET FORTH HEREIN; CERTIFICATE OF APPEALABILITY AND REQUEST TO APPEAL IN FORMA PAUPERIS DENIED; TERMINATION ENTRY

Based upon the reasoning and citations of authority set forth by the United States Magistrate Judge, in her Report and Recommendations filed September 22, 2006 (Doc. #6), as well as upon a de novo review of this Court's file and the applicable law, said Report and Recommendations are adopted in their entirety. The Plaintiff's "Motion to Overrull [sic] the Denial of a Black Man's right to a Fair and Speedy Trial (Doc. #7)," construed as Objections to said judicial filing, are overruled. Judgment will be ordered entered in the manner recommended by the United States Magistrate Judge, to wit:

1. to the extent Upshaw has filed a Petition for a Writ of Habeas Corpus, his Petition are DISMISSED without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases;

2. to the extent Upshaw raises claims under 42 U.S.C. § 1983, such claims are DISMISSED under 28 U.S.C. § 1915(A)(b)(1);

3. Upshaw's Motion for fair and Speedy Trial (Doc. #4) is DENIED; and

4. Upshaw's Motion for Reply (Doc. #5) is DENIED.

Should the Plaintiff's filing be construed as a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, given that he has failed to demonstrate the denial of a federal constitutional right and that the Court's decision herein would be debatable among jurists of reason, a Certificate of Appealability is denied. Further, given that any appeal from this Court's decision herein would be objectively frivolous, leave to appeal in forma pauperis 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.

WALTER HERBERT RICE UNITED STATES DISTRICT JUDGE

20070109

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