Simmons v. Bowersox

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS..IT IS HEREBY ORDERED that Judge Noce's Report and Recommendation, #12, filed on August 14, 2013 is adopted and sustained in its entirety. IT IS FURTHER ORDERED that Petitioner Leroy Simmon's Petiti on for Writ of Habeas Corpus, #1, is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Judgment in accordance with this Memorandum and Order is entered this same date for 1 Petition for Writ of Habeas Corpus filed by Leroy Simmons, 12 Report and Recommendations. Signed by District Judge Stephen N. Limbaugh, Jr on 9/3/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEROY SIMMONS,
Petitioner,
vs.
MICHAEL S. BOWERSOX,
Respondent.

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Case No. 4:11CV00542 SNLJ

MEMORANDUM AND ORDER
This matter is before me on the petition for writ of habeas corpus filed by Petitioner
Leroy Simmons. I referred this matter to United States Magistrate Judge David D. Noce,
for a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b). On
August 14, 2013, Judge Noce filed his recommendation that Simmon’s habeas petition should be
denied.
No objections to Judge Noce’s Report and Recommendation were filed. After careful
consideration, I will adopt and sustain the thorough reasoning of Judge Noce and deny Simmon’s
habeas petition for the reasons stated in the Report and Recommendation dated August 14, 2013.
I have also considered whether to issue a certificate of appealability. To grant a certificate of
appealability, the Court must find a substantial showing of the denial of a federal constitutional
right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a
showing that issues are debatable among reasonable jurists, a Court could resolve the issues
differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994). Because Simmons has not
made such a showing in this case, I will not issue a certificate of appealability.

Accordingly,
IT IS HEREBY ORDERED that Judge Noce’s Report and Recommendation, #12, filed
on August 14, 2013 is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Petitioner Leroy Simmon’s Petition for Writ of
Habeas Corpus, #1, is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate Judgment in accordance with this Memorandum and Order is entered this
same date.
Dated this 3rd day of September, 2013.

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STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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