Hembree v. USA

Filing 2

MEMORANDUM ORDER: 1) The 274 Report and Recommendations is ADOPTED and INCORPORATED by reference. 2) Deft/Movant's 260 MOTION to Vacate is DENIED. 3) Deft/Movant's claims are DISMISSED, with prejudice, and his collateral proceeding (5:24-cv-277) is STRICKEN from the docket. 4) A Certificate of Appealability will not issue. Signed by District Judge Danny C Reeves on 03/05/2025. (DC) cc: COR and Bud Hembree by US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
UNITED STATES OF AMERICA,

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Plaintiff/Respondent,
V.
BUD HEMBREE,
Defendant/Movant.
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Criminal Action No. 5: 21-074-DCR
and
Civil Action No. 5: 24-277-DCR
MEMORANDUM ORDER

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Defendant/Movant Bud Hembree has filed a motion seeking to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 260] Consistent with local
practice, the matter was referred to a United States Magistrate Judge for preparation of a Report
and Recommendation (“R&R”). On February 12, 2025, United States Magistrate Judge
Edward B. Atkins issued his R&R, recommending the denial of Hembree’s motion. [Record
No. 274] Neither party filed timely objections to the R&R.
This Court must make a de novo determination of those portions of the magistrate
judge’s recommendation to which objections are made. See 28 U.S.C. § 636(b)(1)(C).
However, “[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, when neither
party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Accordingly, the
R&R will be adopted and the relief sought by the defendant will be denied.
The undersigned also concludes that a Certificate of Appealability should not issue
under 28 U.S.C. § 2253(c). A certificate of appealability should be granted “only if the
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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make such a showing, a movant must show that “reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Miller-El v. Cockrell, 537 U.S. 322, 349-50 (2003).
Here, reasonable jurists would not find the denial of Hembree’s claims to be debatable or
wrong, as none present a close question.
Based on the foregoing, it is hereby ORDERED as follows:
1.

United States Magistrate Judge Edward B. Atkins’ Report and Recommendation

[Record No. 274] is ADOPTED and INCORPORATED by reference.
2.

Defendant/Movant Bud Hembree’s motion to vacate, set aside, or correct his

sentence [Record No. 260] is DENIED.
3.

Defendant/Movant Hembree’s claims are DISMISSED, with prejudice, and his

collateral proceeding [Civil Action No. 5: 24-277] is STRICKEN from the docket.
3.

A Certificate of Appealability will not issue.

Dated: March 5, 2025.

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