Kitchen v. Ballard

Filing 115

ORDER ADOPTING 110 Report and Recommendations: Petitioners Petitions Under28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody are DENIED and DISMISSED WITH PREJUDICE. Petitioner has failed to make this showing and, a ccordingly, this Court DECLINES to issue a certificate of appealability. Signed by District Judge John Preston Bailey on 3/1/22. (Attachments: # 1 Certified Mail Return Receipt)(jss) Modified on 3/1/2022 (jss). (Main Document 115 replaced on 3/1/2022) (jss).

Case 1:16-cv-00169-JPB Document 115 Filed 03/01/22 Page 1 of 2 PageID #: 1884
I

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Clarksburg
KILTON L. KITCHEN,
Petitioner,
v.

CRIMINAL ACTION NO. I :16-CV-169
Judge Bailey

DONALD AMES,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
The above referenced case is before this Court upon the magistrate judge’s
recommendation that petitioner’s petition/amended petition be dismissed with prejudice. See
[Doc. 1101.
This Court is charged with conducting a de novo review of any portion of the magistrate
judge’s report to which a specific objection is registered, and may accept, reject, or modify,
in whole or in part, the recommendations contained in that report. 28 U.S.C.

§ 636(b)(1).

However, absent prompt objection by a dissatisfied party, it appears that congress did not
intend forthe district courtto reviewthe factual and legal conclusions of the magistrate judge.
Thomas v. Am, 474 U.S. 140(1985). Additionally, any partywho fails to file timely, written
objections to the magistrate judge’s report pursuant to 28 U.S.C. § 636(b)(1 )waives the right
to raise those objections atthe appellate court level. United States V. Schronce, 727 F.2d
91(4th Cir. 1984), cert. denied, 467 U.S. 1208(1984). No objections have been filed to the
magistrate judge’s report and recommendation.
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Case 1:16-cv-00169-JPB Document 115 Filed 03/01/22 Page 2 of 2 PageID #: 1885

A de novo review of the record indicates that the magistrate judge’s report accurately
summarizes this case and the applicable law. Accordingly, the magistrate judge’s report and
recommendation [Doc. 1101 is ADOPTED, and petitioner’s Petitions Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody [Docs. I & 74] are DENIED and
DISMISSED WITH PREJUDICE. This Court further DIRECTS the Clerkto enterjudgment
in favor of the respondent and to STRIKE this case from the active docket of this Court.
An appeal may not be taken from the final order in a

§ 2254 proceeding unless the

district court issues a certificate of appealability. See 28 U.S.C. § 2253(c)( I )(A). A certificate
of appealabilitywill not issue unless a prisoner makes “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has failed to makethis showing and,
accordingly, this Court DECLINES to issue a certificate of appealability.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and to
mail a copy to the pro se petitioner.
DATED: March

,

2022.

JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE

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