Miracle v. Kentucky State Reformatory

Filing 18

ORDER ADOPTING IN PART REPORTAND RECOMMENDATION Signed by Judge Claria Horn Boom on 9/13/2018. Report and Recommendations 15 is adopted in part as the opinion of this Court. The Amended Petition for Writ of Habeas Corpus 8 is DENIED andDISMISSED WITH PREJUDICE. A Certificate of Appealability is DENIED pursuant to 28 U.S.C. § 2254. cc: Counsel, Pro Se Petitioner (MEJ) Modified on 9/13/2018 to clarify distribution (MEJ).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
DENNIS JAMES MIRACLE,
Petitioner,
v.
AARON SMITH, Warden, Kentucky State
Reformatory,
Respondent.

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Civil Action No. 3:15-cv-760-CHB

ORDER ADOPTING IN PART REPORT
AND RECOMMENDATION

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This matter is before the Court on the Report and Recommendation filed by United States
Magistrate Judge Colin Lindsay [R. 15]. The Report and Recommendation addresses the pro se
amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R. 8] filed by the
petitioner.
In his Report and Recommendation, Magistrate Judge Lindsay concluded that the petition
is moot; that the petitioner did not fail to exhaust available state remedies; that the petition fails
to meet the fact pleading requirement set out in Rule 2(c)(2) of the Rules Governing Section
2254 Cases; that the Eighth Amendment and any due process claims have no merit; and that the
petitioner is not entitled to a certificate of appealability. [R. 15 at 5-10] The Magistrate Judge
recommended that the petition be denied and dismissed with prejudice, and that the petitioner be
denied a certificate of appealability as to each of his claims. Id. at 11.
Generally, this Court must make a de novo determination of those portions of the Report
and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(c). When no
objections are made, this Court is not required to “review . . . a magistrate’s factual or legal
conclusions, under a de novo or any other standard . . . .” See Thomas v. Arn, 474 U.S. 140, 151
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(1985). Parties who fail to object to a magistrate’s report and recommendation are also barred
from appealing a district court’s order adopting that report and recommendation. United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).
Judge Lindsay’s Report and Recommendation advised the parties that any objections
must be filed within fourteen (14) days of service. [R. 15 at 11] The time to file objections has
passed, and neither party has filed any objections to the Report and Recommendation nor sought
an extension of time to do so. See Id. at 11; Fed. R. Crim P. 59(b). Nevertheless, this Court has
examined the record, and agrees with the Magistrate Judge’s Report and Recommendation to the
extent that it points out that the petitioner’s habeas petition is clearly moot and that it fails to
comply with Rule 2(c)(2) of the Rules Governing Section 2254 Cases (which requires the
petitioner to plead facts supporting his petition). 1 Likewise, the Court agrees that the petitioner
is not entitled to a certificate of appealability. The petitioner has not shown that “jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right,” nor “that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling” as to mootness and failure to comply with Rule 2(c)(2) of
the Rules Governing Section 2254 Cases. Bradley v. Birkett, 156 F. App’x 771, 772 (6th Cir.
2005) (citing Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Accordingly, and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED as follows:

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It appears that the petition may also contain claims based on “assault and battery . . . [by] KSR staff.” [R. 8 at 3]
To the extent that any such claims have not already been litigated in Petitioner’s previous Section 1983 suit (3:14cv-690-JHM), they would still fail for lack of factual pleading.

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1.

The Magistrate Judge’s Report and Recommendation [R. 15] is ADOPTED IN
PART as the opinion of this Court.

2.

The Amended Petition for Writ of Habeas Corpus [R. 8] is DENIED and
DISMISSED WITH PREJUDICE.

3.

A Certificate of Appealability is DENIED pursuant to 28 U.S.C. § 2254.

This the 13th day of September, 2018.

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