Payne v. Meko

Filing 20

ORDER: (1) Magistrate Judge's 19 Report and Recommendations ADOPTED as opinion of Court; (2) Petitioner's 1 Petition for Writ of Habeas Corpus DISMISSED WITH PREJUDICE; (3) Certificate of Appealability SHALL NOT ISSUE; (4) JGM will be entered. Signed by Judge Karl S. Forester on 10/18/2011.(STB)cc: COR, Petitioner

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 09-65-KSF
WILLIAM PAYNE

PETITIONER

V.

ORDER

JOSEPH MEKO, Warden

RESPONDENT

*************

On February 25, 2009, the petitioner, William Payne, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [DE #1], challenging his 1994 conviction in Madison
Circuit Court. Consistent with local practice, this matter was referred to the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b).
On September 20, 2011, the Magistrate Judge filed his report and recommendation [DE #19].
Because the petitioner failed to file his habeas petition within one year from “the conclusion of direct
review or the expiration of the time for seeking such review,” the Magistrate Judge determined that
the petitioner’s claim was barred by the Antiterrorism and Effective Death Penalty Act. See 28
U.S.C. § 2244(d)(1)(A). Additionally, the Magistrate Judge concluded that the petitioner failed to
raise any equitable tolling theory. Consequently, the Magistrate Judge recommends that the
petitioner’s petition be denied and that a certificate of appealability not issue.
The petitioner failed to file any objections to the Magistrate Judge’s report and
recommendation, and the time for filing the same has passed. Although this Court must make a de

novo determination of those portions of the Magistrate Judge’s report and recommendation to which
objection is made, 28 U.S.C. § 636(b)(1)(c), “[i]t does not appear that Congress intended to require
district court review of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Moreover, a party who fails to file objections with the Court to a Magistrate Judge’s report and
recommendation waives the right to appeal. See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th
Cir. 1986). Nevertheless, the Court, having examined the record and having made a de novo
determination, is in agreement with the Magistrate Judge’s report and recommendation.
In determining whether a certificate of appealability should issue as to the petitioner’s claim,
the Court turns to Slack v. McDaniel, 529 U.S. 473 (2000), for guidance. In that case, the United
States Supreme Court held that
[w]here a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) [governing the
issuance of certificates of appealability] is straightforward: The
petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or
wrong.
Id. at 484. In the present case, the Court determines that the petitioner has not presented a close call
or one which is “debatable” and a certificate of appealability will not issue.
Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS
that:
(1)

the Magistrate Judge’s report and recommendation [DE #19] is
ADOPTED as and for the opinion of the Court;

(2)

the petitioner’s petition for a writ of habeas corpus [DE #1] is
DISMISSED WITH PREJUDICE;

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(3)

A Certificate of Appealability SHALL NOT ISSUE; and

(4)

judgment will be entered contemporaneously with this order.

This October 18, 2011.

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