Baker v. Commonwealth of Kentucky

Filing 27

MEMORANDUM OPINION AND ORDER: (1) The 26 Report and Recommendation of US Magistrate Judge Candace J. Smith is ADOPTED IN FULL as the findings of fact and conclusions of law of the Court. (2) Petitioner's 1 Petition for Writ of Habeas Corpus is DENIED. (3) A separate Judgment shall issue contemporaneously with this Memorandum Opinion and Order. Signed by Judge Joseph M. Hood on May 1, 2017. (AWD) cc: COR,Petitioner via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
RICHARD ALLEN BAKER,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
DAN BOTTOM, WARDEN,
Respondent.

Civil Case No.
5:14-cv-358-JMH-CJS

MEMORANDUM OPINION & ORDER

***
This

matter

is

before

the

Court

upon

the

Report

and

Recommendation of United States Magistrate Judge Candace J. Smith
[DE 26], wherein she recommends that the Court deny Petitioner
Richard Allen Baker’s Petition for Writ of Habeas Corpus pursuant
to

28

U.S.C.

appealability.

2254

and

decline

to

issue

a

certificate

of

In that Report, filed on February 14, 2017, Judge

Smith advised Petitioner that Objections thereto were due within
fourteen days, or further appeal would be waived.

Id.

That time

has now expired, and Petitioner has filed no Objections.
Generally,

“a

judge

of

the

court

shall

make

a

Id.
de

novo

determination of those portions of the report or specified proposed
findings or recommendations made by the magistrate judge.”
U.S.C. § 636.

28

However, when the petitioner fails to file any

objections to the Report and Recommendation, as in the case sub
judice, “[i]t does not appear that Congress intended to require

1

district

court

review

of

a

magistrate’s

factual

conclusions, under a de novo or any other standard.”
Arn, 474 U.S. 140, 150 (1985).

or

legal

Thomas v.

Consequently, and in the absence

of any objections from Petitioner, this Court adopts the wellarticulated and detailed reasoning set forth in the Report and
Recommendation as its own.
Finally, the Magistrate Judge recommends that no certificate
of appealability should issue in this matter.

“A certificate of

appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C.

§

2253(c)(2).

In

order

for

a

certificate

to

28

issue,

Defendant must be able to show that reasonable jurists could find
in

his

favor,

and

the

“question

is

the

debatability

of

the

underlying federal constitutional claim, not the resolution of
that debate.”
Again,

in

the

Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).
absence

of

objections

from

Petitioner,

the

undersigned adopts the Report and Recommendation on this issue,
and concludes that no certificate should issue as Petitioner cannot
make a substantial showing of the denial of a constitutional right.
Accordingly, IT IS ORDERED as follows:
(1)

The Report and Recommendation [DE 26] of United States

Magistrate Judge Candace J. Smith is hereby ADOPTED IN FULL as the
findings of fact and conclusions of law of the Court;

2

(2)

Petitioner Richard Allen Baker’s Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. 2254 [DE 1] is hereby DENIED;
and
(3)

A separate Judgment shall issue contemporaneously with

this Memorandum Opinion and Order.
This the 1st day of May, 2017.

3