Crowder v. Forniss et al

Filing 33

MEMORANDUM OPINION ADOPTING and ACCEPTING 31 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Judge Virginia Emerson Hopkins on 3/9/2016. (JLC)

FILED
2016 Mar-09 PM 12:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES A. CROWDER,
Petitioner,
v.
LEON FORNISS, Warden, et al.,
Respondents.

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Case No.: 2:13-cv-00111-VEH-SGC

MEMORANDUM OPINION
On February 22, 2016, the magistrate judge entered a report recommending this
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied as timebarred and procedurally defaulted. (Doc. 31). On March 7, 2016, the petitioner,
James A. Crowder, filed a pleading styled as a "Reply to Magistrate Judge's Report
and Recommendation." (Doc. 32). The court will treat this pleading as posing
objections to the magistrate judge's report and recommendation. For the reasons that
follow, Petitioner's objections will be overruled and the report and recommendation
will be adopted and accepted.
First, Petitioner contends the magistrate judge erred by: (1) entering the report
and recommendation in this case because there was not unanimous consent to
magistrate judge jurisdiction; and (2) "disregarding" a previously-assigned magistrate
judge's order requiring Respondents to show cause why the relief requested in the

petition should not be granted. (Doc. 32 at 2). Petitioner is correct that the parties
have not unanimously consented to magistrate judge jurisdiction. However, in cases
referred to magistrate judges where unanimous consent is lacking, federal law
provides that a report and recommendation is proper. 28 U.S.C § 636(b). Next, to
the extent Petitioner contends the report and recommendation somehow disregards
the order to show cause, this objection is without merit. After Respondents
responded to the order to show cause, the previously-assigned magistrate judge
entered an order pursuant to McBride v. Sharpe, 25 F.3d 962 (11th Cir. 1994),
informing Petitioner: (1) that this matter was ripe for summary disposition; and (2)
of his right to file additional affidavits and materials in further support of the petition.
(Doc. 19).

Petitioner replied (Doc. 20),1 and the entry of a report and

recommendation is appropriate under these circumstances.
Next, Petitioner objects to the report and recommendation's conclusion that his
claims are time-barred. (Doc. 32 at 2). In support, Petitioner cites documents
already addressed by the magistrate judge.

(Id.). However, Petitioner does not

allege, and the undersigned cannot discern, any error in the conclusion that
Petitioner's claims are time-barred. Moreover, Petitioner has not even attempted to
contest the magistrate judge's conclusion that his claims are procedurally defaulted.
Petitioner actually filed two replies to Respondents’ response: one before (Doc. 14) and one after
(Doc. 20) the entry of the McBride Order. The report and recommendation addresses both replies.
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Accordingly, even if Petitioner's claims were somehow timely, they would be denied
as procedurally defaulted nonetheless.2
After careful consideration of the record in this case, the magistrate judge’s
report, and Petitioner's objections, Petitioner's objections are OVERRULED. The
court hereby ADOPTS the report of the magistrate judge and ACCEPTS her
recommendations. In accordance with the recommendation, the court finds that the
claims in the instant petitioner are due to be denied as time-barred and procedurally
defaulted. Additionally, for the reasons stated in the report and recommendation, a
certificate of appealability will be denied, pursuant to Rule 11 of the Rules Governing
2254 Proceedings.
A separate order will be entered.
DONE this 9th day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

Finally, Petitioner objects to the report and recommendation's statements regarding another habeas
petition filed by Petitioner and adjudicated in this district. See Crowder v. Forniss, No. 13-0118KOB-SGC (N.D. Ala. closed Mar. 12, 2014). To the extent Petitioner objects on the basis that the
report and recommendation states that these two petitions were identical (Doc. 32 at 2-3), he is
mistaken. The magistrate judge correctly stated that a motion filed in the instant matter is identical
to a motion filed in Petitioner's other habeas proceeding. (Doc. 31 at 10). Moreover, even if these
objections were sustained, Petitioner's claims would be time-barred and procedurally defaulted.
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