McBryar v. Billups et al

Filing 11

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 7/23/2015. (PSM)

FILED
2015 Jul-23 PM 05:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SHERMAN NATHANIEL MCBRYAR,
Petitioner,
v.
WARDEN BILLUPS and THE
ATTORNEY GENERAL FOR THE
STATE OF ALABAMA,
Respondents.

)
)
)
)
)
)
)
)
)
)
)

Case Number: 5:14-cv-01027-LSC-JHE

MEMORANDUM OPINION
On June 26, 2015, the magistrate judge entered a Report and Recommendation, (doc. 9),
recommending that this petition for writ of habeas corpus be dismissed with prejudice. Petitioner
Sherman Nathaniel McBryar filed objections. (Doc. 10).
McBryar’s objections raise all of the same arguments as his previous arguments before the
magistrate judge regarding evidence of child abuse by another person, (id. at 2-5), and of the
ineffective assistance of his counsel, (id. at 5-6). He does not point to any particular errors in the
magistrate judge’s findings of fact or conclusions of law.
The court has considered the entire file in this action, together with the report and
recommendation, and has reached an independent conclusion that the report and recommendation
is due to be adopted and approved. Accordingly, the court hereby adopts and approves the findings
and recommendation of the magistrate judge as the findings and conclusions of this court. The
petition for writ of habeas corpus is due to be DISMISSED and McBryar’s motion for discovery and
funds for an attorney and expert DENIED. A separate Order will be entered.

This Court may issue a certificate of appealability “only if the applicant has a made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, a “petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve encouragement to proceed further,”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This Court finds
Petitioner’s claims do not satisfy either standard.
Done this 23rd day of July 2015.

L. Scott Coogler
United States District Judge
[160704]

2