Kitchen v. Danials et al

Filing 11

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 8/30/16. (SAC )

FILED
2016 Aug-30 AM 09:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT DELANO KITCHEN,
Petitioner,
Case No. : 2:13-cv-1435-KOB-SGC
v.
LEPOSEY DANIALS,1 Warden, et al.,
Respondents.

MEMORANDUM OPINION
On August 9, 2016, the magistrate judge entered a report (doc. 9), recommending that the
court deny this petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, as time-barred
and procedurally defaulted. On August 24, 2016, Petitioner filed objections to the magistrate judge’s
report and recommendation. (Doc. 10).
The magistrate judge’s report addresses the substance of Petitioner’s objections, and he
presented no evidence or arguments to overcome the conclusion that his claims are procedurally
defaulted and time-barred. While Petitioner’s objections make a passing reference to actual
innocence, he has not stated an actual innocence claim because he has presented no new evidence
that was unavailable at trial. Accordingly, Petitioner’s objections (doc. 10) are OVERRULED.
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 is due to be denied as timebarred and procedurally defaulted. A certificate of appealability is due to be denied.

1

Although Respondent’s name is actually “Leeposey Daniels,” the court has used Petitioner’s spelling.

The court will enter a separate Final Order.
DONE and ORDERED this 30th day of August, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE