King v. Bottoms et al

Filing 24

MEMORANDUM OPINION & ORDER: (1) in accordance with the 23 Recommended Disposition of Mag Judge Smith, the clerk shall substitute LaDonna Thompson, Commission, Kentucky Department of Corrections as the Respondent; (2) the Recommended Disposition is ACCEPTED & ADOPTED; (3) that King's construed amendment to the petition is DENIED WITHOUT PREJUDICE AS WITHDRAWN; (4) the Petition for a Writ of Habeas Corpus is DISMISSED WITH PREJUDICE; (5) no certificate of appealability will issue. Signed by Judge Joseph M. Hood on 3/17/14.(KJR)cc: COR, Jamell King (US Mail)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JAMELL M. KING,

)
)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
LADONNA THOMPSON,
Commissioner, Kentucky
Department of Corrections,
Respondent.

Civil Case No.
5:13-cv-229-JMH
MEMORANDUM OPINION
AND ORDER

***
This

matter

is

before

the

Court

on

the

Recommended

Disposition entered by Magistrate Judge Candace J. Smith. [D.E.
23]. Said action was referred to the magistrate for the purpose
of reviewing the merit of Petitioner King’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. [D.E. 1]. Following
an initial review of the petition, the Court ordered Petitioner
to show cause why the matter should not be dismissed as untimely
[D.E. 3], to which Petitioner responded. [D.E. 8]. Petitioner
filed what was construed as an amendment to his petition [D.E.
4], but later elected to proceed on the original petition. [D.E.
8].

In

her

Recommended

Disposition,

the

Magistrate

Judge

concludes that Petitioner’s filing of the Writ was untimely,
and, thus, Petitioner’s Petition for Writ of Habeas Corpus under
28 U.S.C. § 2254 should be denied and this matter dismissed.

The Magistrate Judge filed her Report and Recommendation
[D.E.

23]

on

February

6,

2014,

advising

Petitioner

that

particularized objections to same were due within fourteen days
or further appeal would be waived. That time has now expired,
and Petitioner has filed no objections.
Aa

Generally,
determination

of

judge
those

of

the

portions

court
of

shall

the

make

report

a

or

de

novo

specified

proposed findings or recommendations to which objection is made.@
28 U.S.C. ' 636(b)(1).

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 the debatability of the underlying constitutional
claim,

not

the

resolution

of
2

that

debate.”

Miller-El

v.

Cockrell, 537 U.S. 322, 342 (2003).
jurists

would

not

debate

the

denial

In this case, reasonable
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, in accordance with the Recommended Disposition

of Magistrate Judge Candace J. Smith [D.E. 23 at 1 n.1], the
Clerk SHALL substitute LaDonna Thompson, Commissioner, Kentucky
Department of Corrections, as the Respondent in this matter;
(2)

that the Recommended Disposition of Magistrate Judge

Candace J. Smith [D.E. 23] be, and the same hereby is, ACCEPTED
and ADOPTED;
(3)
4]

be,

that King’s construed amendment to the petition [D.E.
and

the

same

hereby

is,

DENIED

WITHOUT

PREJUDICE

AS

WITHDRAWN;
(4)

that the Petition for a Writ of Habeas Corpus [D.E. 1]

be, and the same hereby is, DISMISSED WITH PREJUDICE; and
(5)

that no certificate of appealability will issue.

This the 17th day of March, 2014.

3