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James v. Timmerman-Cooper

January 23, 2007

WALLACE B. JAMES, AKA, JAMES B. WALLACE, PETITIONER
v.
D. TIMMERMAN-COOPER, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Smith

MAGISTRATE JUDGE KING

OPINION AND ORDER

On December 21, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Doc. Nos. 17, 18. This matter is before the Court on petitioner's January 8, 2007, notice of appeal, which this Court construes as a request for a certificate of appealability. Doc. No. 19. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED.

In this habeas corpus petition, petitioner asserts:

1. Abuse of Discretion

Court denied request for continuance that was needed to obtain and pay for counsel of choice, to perform investigation which was requested of counsel, yet neglected, and to properly file motion for recusal of court. Court arbitrarily sentenced petitioner to consecutive terms of imprisonment amounting to 12 years.

2. Ineffective Assistance of Trial Counsel

Trial counsel neglected to perform requested investigation of case, mishandled recusal motion, advised guilty plea to unarraigned plea agreement, [and] did not object to or appeal sentence.

On December 21, 2006, petitioner's habeas corpus petition was dismissed as barred by the one-year statute of limitations under 28 U.S.C. §2244(d).

Where the Court dismisses a claim on procedural grounds, a certificate of appealability should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id. Upon review of the record, the Court concludes that petitioner has failed to establish that reasonable jurists could debate whether the Court was correct in its dismissal of the petition as time-barred. Further, in his objections, which contain only general objections to the Magistrate Judge's Report and Recommendation and the argument that his claims are meritorious, petitioner failed to address the issue of timeliness. He has therefore arguably waived his right to appeal the dismissal of his habeas corpus petition as untimely.

Only... specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 471, 88 L.Ed.2d 435 (1985); Wright v. Holbrook, 794 F.2d 1152, 1154- 55 (6th Cir.1986); Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir.1986).

Smith v. Detroit Federation of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987). Petitioner's request for a certificate of ...


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