Foster v. Jones et al

Filing 18

MEMORANDUM OPINION WITHDRAWING the Court's previous 15 Memorandum Opinion and 16 Final Judgment and the instant Memorandum Opinion and accompanying Final Judgment are SUBSTITUTED in their place. On October 24, 2016, the Court received a fi ling styled as Petitioner's 17 Objections to the Report and Recommendation. Petitioner's Objections attack the weight of the evidence at trial and the remaining objections merely repeat the arguments already asserted but do not address the deficiencies noted in the Report and Recommendation. Accordingly, Petitioner's Objections fail and are hereby OVERRULED. After careful consideration of the record in this case and the Magistrate Judge's Report, the Court ADOPTS the Report of the Magistrate Judge and ACCEPTS her Recommendations. The Court further concludes that a Certificate of Appealability is due to be denied. Signed by Judge Virginia Emerson Hopkins on 10/28/2016. (JLC)

FILED
2016 Oct-28 AM 10:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JONATHAN ANTWAN FOSTER,
Petitioner,
v.
KENNETH JONES, Warden, et al.,
Respondents.

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Case No.: 5:13-cv-01509-VEH-SGC

MEMORANDUM OPINION
The court’s memorandum opinion and final judgment entered on September 30,
2016 (Docs. 15-16), are WITHDRAWN and the instant memorandum opinion and
accompanying final judgment are SUBSTITUTED in their place.
On August 1, 2016, the magistrate judge entered a report (Doc. 10)
recommending this petition for writ of habeas corpus, filed pursuant to 28 U.S.C. §
2254, be denied on the merits. The report and recommendation provided petitioner
fourteen days in which to object. (Doc. 10 at 7-8). Petitioner filed a motion seeking
a thirty (30) day extension of time to object, citing his pro se status and the difficulty
of performing legal research in prison. (Doc. 11). The magistrate judge granted the
motion, specifying that objections would be due on September 10, 2016. (Doc. 12).
On September 12, 2016, the court received Petitioner's motion seeking a second thirty
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(30) day extension of time in which to file objections. (Doc. 13). The second motion
for extension was based on the same grounds as the first motion. (See Docs. 11, 13).
The magistrate judge denied the second motion and ordered Petitioner to submit any
objections by September 20, 2016. (Doc. 14). After no objections were filed, the
court entered: (1) a memorandum opinion adopting and accepting the magistrate
judge’s report and recommendation; and (2) a final judgment denying the petition.
(Docs. 15-17).
On October 24, 2016, the court received a filing styled as Petitioner’s
objections to the report and recommendation. (Doc. 17). The objections were dated
September 16, 2016–more than a month before the court received the document.
(Doc. 17). Accordingly, petitioner’s objections are treated as timely under the socalled “prison mailbox rule.”
The majority of Petitioner’s objections attack the weight of the evidence at
trial. (See generally Doc. 17). These arguments were not raised in the petition and,
even if they had been, would have been more appropriately raised on direct appeal.
Petitioner’s remaining objections merely repeat the arguments already asserted but
do not address the deficiencies noted in the report and recommendation.
Accordingly, Petitioner’s objections fail and are hereby OVERRULED.

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After careful consideration of the record in this case and the magistrate judge’s
report, the court ADOPTS the report of the magistrate judge and ACCEPTS her
recommendations. Accordingly, the court finds that Petitioner's claims are due to be
denied. The court further concludes that a certificate of appealability is due to be
denied.
A separate order will be entered.
DONE and ORDERED this 28th day of October, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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