Summers v. Rathman

Filing 13

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/27/16. (SAC )

FILED
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
LAVAR SUMMERS,
Petitioner,
v.
JOHN T. RATHMAN, Warden,
Respondent.

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2016 Sep-27 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

Case No.: 1:13-cv-00640-JHH-SGC

MEMORANDUM OPINION
On August 9, 2016, the magistrate judge entered a report (doc. 10), recommending the
petition (doc. 1) be dismissed with prejudice for lack of subject matter jurisdiction. The court
notified petitioner Lavar Summers that he had fourteen days to respond with any objections. (Doc.
10 at 5). On August 15, 2015, the U.S. Postal Service returned to the court Petitioner’s copy of the
report and recommendation marked as undeliverable. (Doc. 11). On August 24, 2016, the
magistrate judge entered an Order noting that the Bureau of Prisons released petitioner to a halfway
house and directing the Clerk to send a copy of the report and recommendation to him at his new
address. (Doc. 12). The Clerk mailed a copy of the report and recommendation to Petitioner at the
new address that same date, and petitioner has filed no objections.
After careful consideration of the record in this case and the magistrate judge’s report, the
court hereby ADOPTS the report of the magistrate judge and ACCEPTS her recommendations.
In accordance with the recommendation, the court finds that the petition (doc. 1) is due to be
dismissed with prejudice for lack of subject matter jurisdiction. The court further finds that
petitioner’s request to transfer this action to the sentencing court is due to be denied.
Additionally, in accordance with Rule 11 of the Rules Governing 2255 Proceedings, the court
also finds that the circumstances of this case do not warrant granting a certificate of appealability,
which the court may issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a “petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotation omitted). Because this court lacks jurisdiction to hear what
are plainly § 2255 claims, a certificate of appealability is not warranted due to be denied.
The court will enter a separate Final Order.
DONE and ORDERED this 27th day of September, 2016.

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KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE