Hamby v. Kilgore et al, No. 4:2021cv00556 - Document 9 (N.D. Ala. 2022)

Court Description: MEMORANDUM OPINION - Having reviewed the materials in the Court's electronic record in this case, the Court adopts the magistrate judge's report and accepts his recommendation. By separate order, the Court will dismiss Mr. Hamby's petition for a writ of habeas corpus without prejudice for failure to exhaust state remedies. Signed by Judge Madeline Hughes Haikala on 2/8/2022. (KEK)

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Hamby v. Kilgore et al Doc. 9 FILED 2022 Feb-08 AM 09:48 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION JONATHAN HAMBY, Petitioner, v. GEORGE EDWARDS, et al., Respondents. ) ) ) ) ) Case No. 4:21-cv-00556-MHH-NAD ) ) ) ) MEMORANDUM OPINION Petitioner Jonathan Hamby filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). On January 12, 2022, the Magistrate Judge entered a report in which he recommended that the Court dismiss Mr. Hamby’s petition without prejudice for failure to exhaust state remedies. (Doc. 8). Although the Magistrate Judge advised Mr. Hamby of his right to file objections to the report and recommendation within 14 days, the Court has not received objections. Having reviewed the materials in the Court’s electronic record in this case, the Court adopts the magistrate judge’s report and accepts his recommendation. By separate order, the Court will dismiss Mr. Hamby’s petition for a writ of habeas corpus without prejudice for failure to exhaust state remedies. A district court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a “petitioner must demonstrate that reasonable Dockets.Justia.com jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). Mr. Hamby has not satisfied either standard. Therefore, if he wishes to appeal this decision, Mr. Hamby must request a certificate of appealability from the Eleventh Circuit Court of Appeals. DONE and ORDERED this February 8, 2022. _________________________________ MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

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