Birdsong v. Department of Corrections et al
MEMORANDUM OPINION & ORDER: 1) The 22 REPORT AND RECOMMENDATION of Magistrate Judge Ingram is ACCEPTED AND ADOPTED. 2) Birdsong's 1 Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE. 3) No certificate of appealability will issue. Signed by Judge Joseph M. Hood on 11/26/2013. (KLB) cc: COR, Pro se Pet via US Mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GARY BECKSTROM, Warden,
Civil Case No.
MEMORANDUM OPINION & ORDER
Disposition entered by Magistrate Judge Hanly A. Ingram [Record
Said action was referred to the magistrate for the
purpose of reviewing the merit of Petitioner Chestnut=s Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. ' 2254 [Record
Following an initial review of the petition, the Court
ordered Respondent to respond, which he did by way of a Motion
to Dismiss [Record No. 17].
Petitioner filed a timely response
to that Motion to Dismiss [Record No. 20], and no reply was
In his Recommended Disposition, the Magistrate Judge
concludes that Petitioner has not exhausted his state remedies
as required prior to filing a federal petition for a writ of
habeas corpus and that, in any event, Petitioner is not entitled
to the credit for time spent on parole which he believes he is
due because a felony conviction based on conduct committed while
on parole eliminates the possibility of “street credit” even if
28 U.S.C. § 2254(b); Hill v. Thompson, 297
S.W.3d 892 (Ky. Ct. App. 2009).
The Magistrate Judge filed his Recommended Disposition on
objections to same were due within fourteen days of the date of
service of the Recommended Disposition or further appeal would
That time has now expired, and Birdsong has filed no
28 U.S.C. ' 636.
However, when the petitioner fails to
file any objections to the Recommended Disposition, as in the
case sub judice, A[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.@
Arn, 474 U.S. 140, 150 (1985).
Consequently, this Court adopts
the reasoning set forth in the Recommended Disposition as its
“A certificate of appealability may issue . . .
only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In
order for a certificate to issue, Petitioner must be able to
show that reasonable jurists could find in his favor, and the
Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).
In this case,
reasonable jurists would not debate the denial of Petitioner’s §
2254 motion or conclude that the issues presented are adequate
to deserve encouragement to proceed further. See id.
Accordingly, IT IS ORDERED:
that the Recommended Disposition of Magistrate Judge
Hanly A. Ingram [Record No. 22] is ACCEPTED and ADOPTED;
that Birdsong=s Petition for a Writ of Habeas Corpus
[Record No. 15] is DISMISSED WITH PREJUDICE;
that no certificate of appealability will issue.
This the 26th day of November, 2013.
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