SIMMONS v. KELLER

Filing 13

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 03/29/2013, that the Magistrate Judge's Recommendation (Doc. 10 ) is ADOPTED. FURTHER that Respondent's Motion for Summary Judgment (Doc. 5 ) is GRANTED, that Pet itioner's petition for writ of habeas corpus (Doc. 2 ) is DENIED, and that this action is DISMISSED. A Judgment dismissing this action will be entered contemporaneously with this Order. Finding no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction, nor a debatable procedural ruling, a certificate of appealability is not issued. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EARNEST SIMMONS,
Petitioner,
v.
ALVIN W. KELLER, JR.,
Respondent.

)
)
)
)
)
)
)
)
)

1:11CV697

ORDER
This matter is before this court for review of the
Memorandum Opinion, Order, and Recommendation (ARecommendation@)
filed on October 12, 2012, by the Magistrate Judge in accordance
with 28 U.S.C. ' 636(b).

(Doc. 10.)

In the Recommendation, the

Magistrate Judge recommends that Respondent’s Motion for Summary
Judgment (Doc. 5) be granted, that the Habeas Petition (Doc. 2)
be denied, and that the action be dismissed.

The Recommendation

was served on the parties to this action on October 12, 2012.
Petitioner filed timely objections (Doc. 12) to the
Recommendation.
This court is required to Amake a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
proposed findings or recommendations to which objection is made.@

28 U.S.C. ' 636(b)(1).

This court Amay accept, reject, or

modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.@

Id.

This court has appropriately reviewed the portions of the
Recommendation to which objection was made and has made a
de novo determination which is in accord with the Magistrate
Judge=s Recommendation.

This court therefore adopts the

Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge=s
Recommendation (Doc. 10) is ADOPTED.

IT IS FURTHER ORDERED that

Respondent’s Motion for Summary Judgment (Doc. 5) is GRANTED,
that Petitioner’s petition for writ of habeas corpus (Doc. 2) is
DENIED, and that this action is DISMISSED.

A Judgment

dismissing this action will be entered contemporaneously with
this Order.

Finding no substantial issue for appeal concerning

the denial of a constitutional right affecting the conviction,
nor a debatable procedural ruling, a certificate of
appealability is not issued.
This the 29th day of March, 2013.

_______________________________________
United States District Judge
- 2 -