West v. Amerson et al

Filing 10

MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/22/2015. (AVC)

FILED
2015 Jun-22 PM 02:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JOSEPH STEPHEN WEST,
Petitioner,
v.
SHERIFF LARRY AMERSON, et al.,
Respondents.

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Case Number: 1:15-cv-00708-RDP-JHE

MEMORANDUM OPINION
On June 12, 2015, the Magistrate Judge entered a Report and Recommendation,
recommending that this petition for writ of habeas corpus be dismissed without prejudice for
failure to exhaust. (Doc. 8). On June 19, 2015, the court received Petitioner’s objections. (Doc.
9).

The court has considered the entire file in this action, together with the Report and

Recommendation and objections thereto, and has reached an independent conclusion that the
Report and Recommendation is due to be adopted and approved.
While Petitioner attempts to attack the Report and Recommendation on several grounds,
he fails to point to any error in the Magistrate Judge’s conclusion that his petition is premature.
(See Doc. 9).

Therefore, because Petitioner’s claims are unexhausted and the petition is

premature, the undersigned will not address Petitioner’s arguments regarding the merits of his
claims. To the extent Petitioner challenges the court’s procedure, it is routine practice in this
court to construe Respondent’s Answer as a motion for summary dismissal when there is no need
for an evidentiary hearing. Petitioner was provide an opportunity to file affidavits or other
materials in opposition and was advised of the possible consequences of not responding. (See
Doc. 6). Furthermore, to the extent Petitioner challenges the statement that he “committed two

new crimes” while in jail, that challenge is well-taken. At the time of filing, warrants had been
issued, but Petitioner had not been convicted of these crimes. This, however, does not change
the outcome of his petition.
Accordingly, the court hereby ADOPTS and APPROVES the findings and
recommendation of the Magistrate Judge as the findings and conclusions of this court. The
petition for writ of habeas corpus is due to be dismissed. A separate Order will be entered.
This court may issue a certificate of appealability “only if the applicant has a 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 quotations omitted).
This court finds Petitioner’s claims do not satisfy either standard.
DONE and ORDERED this June 22, 2015.

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R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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