Birdsong v. Department of Corrections et al

Filing 23

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.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON RONALD BIRDSONG, ) ) ) ) ) ) ) ) ) ) ) Petitioner, v. GARY BECKSTROM, Warden, Respondent. Civil Case No. 12-cv-23-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court on the Recommended Disposition entered by Magistrate Judge Hanly A. Ingram [Record No. 22]. 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 No. 15]. 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 filed. 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 a parolee was violations. originally See returned to custody for technical 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 October 25, 2013, advising Birdsong that particularized objections to same were due within fourteen days of the date of service of the Recommended Disposition or further appeal would be waived. That time has now expired, and Birdsong has filed no objections. Aa Generally, determination proposed judge.@ of findings judge those or of the portions court of recommendations 28 U.S.C. ' 636. shall the make report made by a or the de novo specified magistrate 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). Thomas v. Consequently, this Court adopts the reasoning set forth in the Recommended Disposition as its own. Further, this matter. no certificate of appealability shall issue in “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 “question is constitutional the debatability claim, not the of the resolution underlying of Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). that federal debate.” 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: (1) that the Recommended Disposition of Magistrate Judge Hanly A. Ingram [Record No. 22] is ACCEPTED and ADOPTED; (2) that Birdsong=s Petition for a Writ of Habeas Corpus [Record No. 15] is DISMISSED WITH PREJUDICE; (3) that no certificate of appealability will issue. This the 26th day of November, 2013.

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