Gray v. United States of America

Filing 9

MEMORANDUM OPINION. Signed by Judge R David Proctor on 11/6/2017. (KAM)

FILED
2017 Nov-06 PM 02:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TABITHA BURKS GRAY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No.: 7:17-cv-00175-RDP-SGC

MEMORANDUM OPINION
On October 18, 2017, the Magistrate Judge’s Report and Recommendation was entered
and the parties were allowed therein fourteen (14) days in which to file objections to the
recommendations made by the Magistrate Judge.

On November 3, 2017, Petitioner filed

untimely objections to the Magistrate Judge’s Report and Recommendation. Despite Petitioner’s
untimely filing, the court has considered her objections but finds them meritless.
After careful consideration of the record in this case and the Magistrate Judge’s Report
and Recommendation, the court hereby ADOPTS the Report of the Magistrate Judge. The court
further ACCEPTS the recommendations of the Magistrate Judge that this matter be (1)
recharacterized as a motion to vacate, set aside, or correct under 28 U.S.C. § 2255 and (2)
dismissed for lack of subject matter jurisdiction.
Additionally, the court ACCEPTS the recommendation of the Magistrate Judge that a
certificate of appealability (“COA”) be denied. 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 COA. See 28 U.S.C. § 2253. Rule 22(b) of the Federal Rules of Appellate
Procedure provides that when an appeal is taken by a petitioner, 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.” This showing can be established 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). The
court finds that reasonable jurists could not debate its resolution of the claims presented in this
habeas corpus petition. As such, the court DECLINES to issue a COA with respect to any
claims.
A separate order in accordance with the Memorandum Opinion will be entered.
DONE and ORDERED this November 6, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE