Fulwise v. Hetzel et al

Filing 27

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 6/25/15. (SAC )

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FILED 2015 Jun-25 PM 12:19 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION DERRICK WAYNE FULWISE, Petitioner vs. GARY HETZEL, Warden, and THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents ) ) ) ) ) ) ) ) ) ) ) Case No. 5:13-cv-01767-KOB-HGD MEMORANDUM OPINION The magistrate judge entered his report and recommendation on March 19, 2015, recommending that the court deny the petitioner’s § 2254 habeas petition. (Doc. 22). The court gave the petitioner two extensions of time, to May 1, 2015, and May 29, 2015, in which to file objections. (Docs. 24 & 26). However, no party has filed any objections to the magistrate judge’s report and recommendation. After careful de novo review of the entire record in this case, including the magistrate judge’s report and recommendation, the court hereby ADOPTS the report of the magistrate judge and ACCEPTS his recommendation that the court deny the petition for writ of habeas corpus. Page 1 of 3 Pursuant to Rule 11 of the Rules Governing § 2254 Cases, the court has evaluated the claims within the petition for suitability for the issuance of a certificate of appealability (COA). See 28 U.S.C. § 2253. Rule 22(b) of the Federal Rules of Appellate Procedure provides that when a petitioner appeals, the district judge who rendered the judgment “shall” either issue a COA or state the reasons why such a certificate should not issue. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has made a substantial showing of the denial of a constitutional right.” The petitioner can establish this showing by demonstrating that “reasonable jurists could debate whether (or for that matter, agree that) the petition should have been resolved in a different manner,” or that the issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and whether the court’s procedural ruling was correct. Id. The court finds that reasonable jurists could not debate its resolution of the claims presented in this habeas corpus petition. For the reasons stated in the Page 2 of 3 magistrate judge’s report and recommendation, the court DECLINES to issue a COA with respect to any claims. The court will enter a separate Order in conformity with this Memorandum Opinion. DONE and ORDERED this 25th day of June, 2015. ____________________________________ KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE Page 3 of 3

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