McKee v. Stubblefield

Filing 35

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Judge Crites-Leoni's Report and Recommendation filed on July 11, 2014 is adopted and sustained in its entirety. IT IS FURTHER ORDERED that Petitioner Tracy Eugene McKee's Petition for Writ of Habeas Corpus 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. Signed by District Judge Rodney W. Sippel on 8/6/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRACY EUGENE McKEE,
Petitioner,
v.
ELLIS McSWAIN,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:11 CV 871 RWS

MEMORANDUM AND ORDER
This matter is before me on the petition for writ of habeas corpus filed by Petitioner
Tracy Eugene McKee. I referred this matter to United States Magistrate Judge Abbie CritesLeoni for a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b).
On July 11, 2014, Judge Crites-Leoni filed her recommendation that McKee’s habeas petition
should be denied.
Objections to Judge Crites-Leoni’s Report and Recommendation were due to be filed by
July 25, 2014. As of the date of this order, McKee has not filed any objection to the Report and
Recommendation. After careful consideration, I will adopt and sustain the thorough reasoning of
Judge Crites-Leoni’s report and I will deny McKee’s habeas petition for the reasons stated in the
Report and Recommendation.
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
petitioner has not made such a showing in this case, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Judge Crites-Leoni’s Report and Recommendation
filed on July 11, 2014 is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Petitioner Tracy Eugene McKee’s Petition for Writ
of Habeas Corpus 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.

__________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 6th day of August, 2014.

-2-