McKinney v. Kilgore et al

Filing 7

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 11/29/2018. (JLC)

FILED
2018 Nov-29 AM 10:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
DIONNE CARLOS MCKINNEY,
Petitioner,
v.
JIMMY KILGORE, et al.,
Respondents.

}
}
}
}
} Case No.: 1:17-cv-1994-MHH-TMP
}
}
}
}

MEMORANDUM OPINION
On November 23, 2017, Mr. McKinney filed a petition for writ of habeas
corpus pertaining to his pretrial detention in the Talladega County Jail. (Doc. 1,
pp. 1, 5-7, 20). The respondents answered on January 2, 2018 and moved to
dismiss Mr. McKinney’s claims as unexhausted. (Doc. 4, p. 5).
On January 3, 2018, the magistrate judge assigned to this case ordered Mr.
McKinney to show cause why the Court should not dismiss this case. (Doc. 5, p.
1). On August 29, 2018, the magistrate judge recommended that the Court dismiss
this action without prejudice because Mr. McKinney did not exhaust state court
remedies before he filed his federal habeas petition. (Doc. 6, p. 6). The magistrate
judge notified Mr. McKinney of his right to object to the recommendation. (Doc.
6, pp. 6-7).

To date, Mr. McKinney has not objected to the magistrate judge’s report and
recommendation. Mr. McKinney also has not requested additional time to file
objections.1
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district court reviews legal conclusions in a report de novo and reviews for plain
error factual findings to which no objection is made. Garvey v. Vaughn, 993 F.2d
776, 779 n. 9 (11th Cir. 1993); see also LoConte v. Dugger, 847 F.2d 745, 749
(11th Cir. 1988); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir. 2006).
Based on its review of the record in this case, the Court finds no errors in the
magistrate judge’s report.

Therefore, the Court adopts the magistrate judge’s

report and accepts his recommendation. The Court will issue a separate dismissal
order consistent with this memorandum opinion.
The Court directs the Clerk to please mail a copy of this order to Mr.
McKinney at his address of record in this case and at his address of record in case
number 18-787 (see Doc. 34).

1

In a separate § 1983 action that Mr. McKinney filed in this Court, Mr. McKinney
recently advised the Court that he was about to be released from jail. McKinney v. Kilgore, 17787, Doc. 34 (dated October 5, 2018). Mr. McKinney should have received the magistrate
judge’s report in this habeas case before he was released from jail. The United States Postal
Service has not returned the report to the Court.
2

DONE this 29th day of November, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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