Fulwise v. Hetzel et al

Filing 27

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

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

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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.
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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

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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

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