Chestnut v. Commonwealth of Kentucky, Department of Corrections et al
Filing
7
MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) 6 Report and Recommendation is ACCEPTED and ADOPTED; (2) 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 12/28/2012.(DAK)cc: COR,Pro Se Pla(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
OREECE CHESTNUT,
)
)
Petitioner,
)
)
v.
)
)
COMMONWEALTH OF KENTUCKY
)
DEPARTMENT OF CORRECTIONS and )
WARDEN STEVE HANEY,
)
)
Respondents.
)
Civil Case No.
12-cv-267-JMH
MEMORANDUM OPINION & ORDER
***
This
matter
is
before
the
Court
on
the
Report
and
Recommendation of Magistrate Judge Robert E. Wier [Record No.
6].
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.
1], in which he challenges his incarceration for a conviction in
a Kentucky state court.
The Magistrate Judge, who perceived
that the petition was “non-exhausted and time-barred”, issued an
order [DE 2] requiring Petitioner to show cause why his petition
should not be dismissed for failure to exhaust and to submit any
information
limitations.
supporting
equitable
tolling
of
the
statute
of
There was no response from Petitioner, although
Respondents filed a response [DE 5] arguing that the Petition be
dismissed
courts
because
and,
in
his
any
claims
event,
were
unexhausted
untimely.
In
in
his
the
Report
state
and
Recommendation [DE 6], the Magistrate Judge concludes that the
Petition
is
time-barred
and
recommends
that
the
Petition
be
dismissed.
The Magistrate Judge filed his Report and Recommendation on
November
1,
2012,
advising
Chestnut
that
particularized
objections to same were due within fourteen days of the date of
service of the Report and Recommendation or further appeal would
be waived.
That time has now expired, and Chestnut 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 Report and Recommendation, 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 Report and Recommendation 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 Report and Recommendation of Magistrate Judge
Robert E. Wier [Record No. 6] is ACCEPTED and ADOPTED;
(2)
that Chestnut=s Petition for a Writ of Habeas Corpus
[Record No. 1] is DISMISSED WITH PREJUDICE;
(3)
that no certificate of appealability will issue.
This the 28th day of December, 2012.
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