Lavender v. Thomas et al

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 06/17/2020. (AKD)

FILED
2020 Jun-17 PM 01:36
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
AUBREY BERNARD LAVENDER,
Petitioner,
v.
WARDEN JIMMY THOMAS, et al.,
Respondents.

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Case No.: 7:17-cv-1121-AKKGMB

MEMORANDUM OPINION
On May 26, 2020, the magistrate judge entered a report recommending the
court dismiss with prejudice Petitioner Aubrey Bernard Lavender’s petition for a
writ of habeas corpus as untimely. Doc. 9. The magistrate judge advised the parties
of their right to file specific written objections within fourteen days. Id. Lavender
has filed objections to the report and recommendation. Docs. 10, 11.
In his objections, Lavender argues only that he is innocent of attempted
murder and acted in self-defense. Docs. 10, 11. Lavender does not address the
magistrate judge’s conclusion that his petition is barred by the one-year period
limitation under the Antiterrorism and Effective Death Penalty Act of 1996 and that
he is not entitled to statutory or equitable tolling. Id. Accordingly, the court
OVERRULES Lavender’s objections.

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Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections thereto, the
court

ADOPTS

the

magistrate

judge’s

findings

and

ACCEPTS

his

recommendation. Lavender’s petition for a writ of habeas corpus is due to be
dismissed with prejudice as untimely.
This court may issue a certificate of appealability “only if the applicant has
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). The
court finds Lavender’s claims do not satisfy either standard.
The court will enter a separate Final Judgment.
DONE the 17th day of June, 2020.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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