STANBACK v. DANIELS

Filing 19

ORDER signed by JUDGE CATHERINE C. EAGLES on 5/17/2017 adopting the Magistrate Judge's Recommendation 12 ; that Respondent's motion to dismiss, Doc. 5 , is GRANTED, the Petition, Doc. 1 , is DISMISSED, and the request for a certificate o f appealability, Doc. 15 , is DENIED. 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. (Sheets, Jamie)

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

ROBERT ANTWAIN STANBACK,
Petitioner,
v.
FAYE DANIELS,
Respondent.

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1:16CV1301

ORDER
The Order and Recommendation of the United States Magistrate Judge was filed
with the court in accordance with 28 U.S.C. § 636(b) and, on April 11, 2017, was served
on the parties in this action. Doc. 12. The petitioner objected to the Recommendation.
Doc. 14. He also filed a request for a certificate of appealability. Doc. 15.
The Court has reviewed the portions of the Magistrate Judge’s report to which
objection was made and has made a de novo determination which is in accord with the
Magistrate Judge’s report. With one exception noted infra, the court adopts the
Magistrate Judge’s recommendation.
To the extent the Magistrate Judge’s Recommendation can be read to hold as a
matter of law that in every case the state satisfies its constitutional obligations to
prisoners seeking post-conviction relief through NCPLS, the Court does not adopt that
broad holding. The record is clear that in this case the petitioner had adequate access to
legal materials and assistance, see Doc. 10 at 9 (referencing in his brief access to “law
books” and “prison legal services”), and any broader holding is unnecessary.

The petitioner has asked for a certificate of appealability. Such certificates are
only issued upon a finding that there is a substantial issue for appeal concerning the
denial of a constitutional right affecting the conviction, or a debatable procedural ruling.
See 28 U.S.C. § 2253(c)(2). Here, the petitioner’s conviction was over a decade old
when he began the post-conviction process, and there is no substantial issue or debatable
procedural ruling as to its timeliness. Therefore, the Court denies a certificate of
appealability. See 28 U.S.C. § 2253(c)(2).
IT IS THEREFORE ORDERED AND ADJUDGED that Respondent=s motion
to dismiss, Doc. 5, is GRANTED, the Petition, Doc. 1, is DISMISSED, and the request
for a certificate of appealability, Doc. 15, is DENIED. 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 17th day of May, 2017.
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UNITED STATES DISTRICT JUDGE

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