Eads v. Bottoms
Filing
12
MEMORANDUM OPINION & ORDER: (1) that the Recommended Disposition of Magistrate Judge Robert E. Wier [D.E. 11 ] be, and the same hereby is, ACCEPTED and ADOPTED; (2) that the Petition for a Writ of Habeas Corpus [D.E. 1 ] be, and the same hereby is, DISMISSED WITH PREJUDICE; and (3) that no certificate of appealability will issue. Signed by Judge Joseph M. Hood on 6/12/2014. Case Terminated(RBB)cc: COR, paper copy to George Everly Eads, via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
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GEORGE EVERLY EADS,
Petitioner,
v.
DON BOTTOM, WARDEN,
Respondent.
Civil Action No.
6:13-cv-29-JMH-REW
MEMORANDUM OPINION
AND ORDER
***
This
matter
is
before
the
Court
on
the
Recommended
Disposition entered by Magistrate Judge Robert E. Wier. [D.E.
11]. Said action was referred to the magistrate for the purpose
of reviewing the merit of Petitioner Eads’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 determined that the
action was time-barred and ordered the Respondent to file a
response on the issue of timeliness, to which Petitioner could
reply. Respondent responded [D.E. 7], and Petitioner replied.
[D.E. 10]. In his 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 his Report and Recommendation
[D.E.
11]
on
May
12,
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.
Generally,
determination
proposed
“a
of
judge
those
findings
or
of
the
portions
court
of
recommendations
made.” 28 U.S.C. ' 636(b)(1).
shall
the
to
make
report
which
or
a
de
novo
specified
objection
is
However, when the petitioner fails
to file any objections to the Recommended Disposition, as in the
case sub judice, “[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.” Thomas v.
Arn, 474 U.S. 140, 150 (1985).
Consequently, this Court adopts
the reasoning set forth in the Recommended Disposition as its
own.
Further,
no
this matter.
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
that
Cockrell, 537 U.S. 322, 342 (2003).
jurists
would
not
debate
the
denial
2
debate.”
Miller-El
v.
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 the Recommended Disposition of Magistrate Judge
Robert E. Wier [D.E. 11] be, and the same hereby is, ACCEPTED
and ADOPTED;
(2)
that the Petition for a Writ of Habeas Corpus [D.E. 1]
be, and the same hereby is, DISMISSED WITH PREJUDICE; and
(3)
that no certificate of appealability will issue.
This the 12th day of June, 2014.
3
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