KINDER v. OUBRE

Filing 15

AMENDED ORDER. This Order replaces the 14 Order Adopting 13 Report and Recommendation. 10 Motion to Dismiss is GRANTED. The Petitioner's § 2254 petition is DISMISSED. A certificate of appealability is DENIED. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/29/2014. (tlh)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION GAREY BERNARD KINDER, Petitioner, v. WARDEN SHEILA OUBRE, Respondent. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 5:13-CV-259 (MTT) AMENDED ORDER Before the Court is the Recommendation of Magistrate Judge Charles H. Weigle (Doc. 13) on the Respondent’s motion to dismiss (Doc. 10). The Magistrate Judge recommends granting the motion to dismiss because the Petitioner failed to file his § 2254 habeas petition within the one-year limitations period set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and showed no basis for equitable tolling.1 The Magistrate Judge further recommends denying a certificate of appealability because the Petitioner has not made a substantial showing of the denial of a constitutional right. The Petitioner has not objected to the Recommendation. The Court has reviewed the Recommendation, and the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation is ADOPTED and made the order of this Court. Accordingly, the Respondent’s motion to dismiss is GRANTED, and the Petitioner’s § 2254 petition is DISMISSED. A certificate of appealability is DENIED.                                                                1 As noted in the Recommendation, the Petitioner failed to respond to the motion to dismiss at all despite a court order. SO ORDERED, this 29th day of April, 2014. S/ Marc T. Treadwell MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT   ‐2‐

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