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EDWARD SMITH, Petitioner, v. EDWIN VOORHIES, JR, Warden, Respondent.

OPINION AND ORDER

S. SPIEGEL, Senior District Judge

This matter is before the Court on Petitioner's Motion for Rehearing/Relief from Judgment (doc. 11). For the reasons stated herein, the Court DENIES Petitioner's motion.

Petitioner was convicted of murder with a firearms specification in the Hamilton County, Ohio, Court of Common Pleas on Aug. 11, 1999 (doc. 1). Petitioner filed a petition for a writ of habeas corpus on November 26, 2001, which the Court denied on September 2, 2002 (doc. 5). The Sixth Circuit then denied Petitioner's motion for a certificate of appealability on June 2, 2005 (Id.).

On January 17, 2007, Petitioner filed a second petition for habeas relief (doc. 1). Respondent then filed a motion to transfer consideration of the petition to the Sixth Circuit Court of Appeals for a determination of whether the petition fell within an exception to the 18 U.S.C. § 2244(b)(2) prohibition against successive petitions (doc. 5). The Magistrate Judge issued a Report and Recommendation recommending that the petition be transferred to the Court of Appeals for further consideration (doc. 7). Petitioner objected to the Report and Recommendation (doc. 8), but the Court ultimately issued an Order on September 12, 2007, adopting the Report and Recommendation, and granting Respondent's Motion to transfer the petition to the Sixth Circuit Court of Appeals (doc. 10).

Petitioner, appearing pro se, now moves pursuant to Fed.R.Civ.P. 60(b)(4), (6), for an order granting rehearing or relief from judgment from the Court's order (doc. 11). Fed R. Civ. P. 60(b)(4), (6) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
. . .
(4) the judgment is void;
. . .
(6) any other reason that justifies relief.

Having reviewed this matter, the Court does not find Petitioner's arguments well-taken. Petitioner's motion merely restates his objections to the Magistrate Judge's Report and Recommendation, and sets forth no arguments as to why the Court's September 12, 2007 Order is either void or reasons which would justify relief (See docs. 8, 11). The Court thoroughly addressed each of Petitioner's arguments in its previous Order (doc. 10), and finds that Petitioner's instant motion provides no basis for reconsideration.

Therefore, the Court DENIES Petitioner's Rehearing/Relief from Judgment (doc. 11). Because "jurists of reason would not find it debatable as to whether this Court is correct in its procedural findings" the Court DOES NOT issue a certificate of appealability in this case. Finally, the Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Order would not be taken in "good faith" and therefore DENIES Petitioner leave to appeal in forma pauperis upon a showing of financial necessity.

SO ORDERED.

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SMITH v. VOORHIES
(Apr 1, 2008)