Black v. Forniss et al

Filing 38

MEMORANDUM OPINION ADOPTING and ACCEPTING the Magistrate Judge's 35 REPORT AND RECOMMENDATIONS. Signed by Judge Virginia Emerson Hopkins on 6/22/2015. (JLC)

FILED
2015 Jun-22 AM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
MICHAEL EUGENE BLACK,
Petitioner,
v.
WARDEN LEON FORNISS, et al.,
Respondents.

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Case No.: 3:14-cv-01383-VEH-SGC

MEMORANDUM OPINION
On June 5, 2015, the magistrate judge entered a report recommending this
petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by petitioner,
Michael Eugene Black, be dismissed as time-barred and procedurally defaulted. (Doc.
35). The magistrate judge further recommended denial of a certificate of
appealability. (Id. at 8-9). On June 17, 2015, Black, filed a pleading styled as “Show
of Cause (Howling),” which the court construes as objections to the magistrate
judge’s report or, in the alternative, as a motion. (Doc. 37).
Black’s objections primarily consist of reassertions of arguments and demands
presented to and rejected by the magistrate judge. Black also contends the magistrate
judge “failed to address equal protection under the law.” (Doc. 37 at 1). Black has not
presented a viable equal protection claim or demonstrated a right to habeas relief due
to a violation of his equal protection rights. However, to the extent Black may have

attempted to present such a claim–and to the extent such a claim could be cognizable
in a § 2254 petition–it would fail as procedurally defaulted and time-barred. See
Taylor v. Sec., Dept. of Corr., 507 F. App’x 887, 891 (11th Cir. 2013). Just as with
the other claims asserted in the petition, Black has never presented an equal
protection claim to the Alabama Supreme Court, either via direct appeal or a Rule 32
petition; even if he had, the claim would be time-barred here.
Having carefully reviewed and considered de novo all the materials in the court
file, the court is of the opinion that the magistrate judge’s findings are due to be and
are hereby ADOPTED and her recommendation is ACCEPTED. To the extent the
petitioner’s filing of June 17, 2015 (Doc. 37), is construed as interposing objections
to the report and recommendation, such objections are due to be and hereby are
OVERRULED. To the extent the filing (Doc. 37) is construed as a motion, it is due
to be and hereby is DENIED. Accordingly, the petition for writ of habeas corpus is
due to be dismissed as procedurally defaulted and time-barred.
A Final Judgment will be entered.
DONE this 22nd day of June, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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