Gamble v. Bottom
Filing
4
MEMORANDUM OPINION & ORDER: (1) The Magistrate Judge's 3 Order is ACCEPTED and ADOPTED as the Court's decision. (2) The 1 Petition of Bennie L. Gamble for a writ of habeas corpus pursuant to 28 USC 2254 is DENIED WITHOUT PREJUDICE. (3) No certificate of appealability shall issue. Signed by Judge Joseph M. Hood on January 23, 2015. (AWD) cc: Petitioner via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at FRANKFORT
BENNIE L. GAMBLE, JR.,
)
)
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)
)
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Petitioner,
v.
DON BOTTOM, Warden,
Respondent.
**
This
is
matter
**
before
Civil Action No.
5:14-CV-437-JMH-EBA
MEMORANDUM OPINION & ORDER
**
**
**
the
Court
on
the
Report
Recommendation of Magistrate Judge Edward B. Atkins [DE
and
3].
Said
action was referred to the magistrate for initial consideration of
the pro se petition of Bennie L. Gamble, Jr., for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 [DE 1] and the preparation of a
Report and Recommendation pursuant to 28 U.S.C. § 636(b).
No
objections to the Report and Recommendation have been filed within
the fourteen day period provided for in 28 U.S.C. § 636(b)(1), and
this matter is now ripe for consideration.
Generally,
Aa
judge
of
the
court
shall
make
a
de
novo
determination of those portions of the report or specified proposed
findings or recommendations made by the magistrate judge.@ 28
U.S.C. ' 636.
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
conclusions, under a de novo or any other standard.@
or
legal
Thomas v.
Arn, 474 U.S. 140, 150 (1985).
Further, the Court concludes that
the recommended disposition is well supported by the law cited by
the magistrate judge and based upon the contents of the Petition.
Consequently and in the absence of any objections from Petitioner
Gamble,
this
Court
adopts
the
well-articulated
and
detailed
reasoning set forth in the Report and Recommendation as its own.
In
his
Report
and
Recommendation,
the
Magistrate
Judge
recommends that the petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 be denied without prejudice as Petitioner has
failed to “state the facts supporting each ground” for relief
claimed, even though he has been provided an opportunity to file a
supplemental pleading detailing the facts supporting each ground
raised in his § 2254 petition.
The Magistrate Judge also noted
that proper venue for this action lies in the Western District of
Kentucky per LR 3.2(b) (“A . . . state habeas corpus petition shall
be assigned to the jury division that includes the court . . . in
which the challenged judgment, conviction or order was rendered.”)
and LR 3.1(b)(4) (assigning McCracken County, the county in which
Petitioner was convicted, to the Paducah division of the Western
District
of
Kentucky)
and
that
the
Court
could,
“[f]or
the
convenience of the parties and witnesses, in the interests of
justice,” transfer the action to the Western District of Kentucky
pursuant to 28 U.S.C. § 1404(a).
In this instance, the Court sees
no reason to transfer the action.
2
Neither convenience nor the
interest of justice will be served by transferring this action.1
Finally,
the
Court
agrees
with
the
Magistrate
Judge’s
assessment concerning the denial of a certificate of appealability.
Reasonable jurists would not debate the denial of Petitioner’s §
2254 petition or conclude that the issues presented are adequate to
deserve
encouragement
to
proceed
further.
See
Miller-El
v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529
U.S. 473, 484 (2000)). A certificate of appealability is denied.
Accordingly, IT IS ORDERED:
(1)
that the Magistrate Judge=s Order [DE 3] is ACCEPTED and
ADOPTED as the Court’s decision;
(2)
that the petition of Bennie L. Gamble for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [DE 1] is DENIED WITHOUT
PREJUDICE; and
(3)
that no certificate of appealability shall issue.
This is the 23rd day of January, 2015.
1
Further, the Court agrees with the Magistrate Judge that Gamble’s
decision to file his petition in this district was not a good faith error
as he has at least three previous cases transferred from this district to
the Western District. See Case Nos. 5:13-cv-270-KKC; 7:12-cv-76-ART;
7:11-cv-145-GFVT.
3
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