-CJS Bates v. Bottom, No. 5:2009cv00377 - Document 31 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION and ORDER: Court ORDERS (1) 26 AMENDED REPORT AND RECOMMENDATIONS is ADOPTED; (2) Bates's 1 Petition for Writ of Habeas Corpus is DENIED; (3) certificate of appealability is DENIED; (4) Bates's construed motion to appoint counsel is DENIED; (5) matter is CLOSED and STRICKEN from active docket. Judgment will issue.Signed by Judge Jennifer B Coffman on 01/24/2012.(DAK)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON CIVIL ACTION NO. 09-377-JBC-CJS ALFRED BATES, V. PETITIONER, MEMORANDUM OPINION AND ORDER DON BOTTOM, WARDEN, RESPONDENT. ********** This matter is before the court on Magistrate Judge Candace J. Smith s amended report and recommendation for disposition of Alfred Bates s petition for a writ of habeas corpus (R. 26) and Bates s objection (R. 29). Having reviewed these documents and the record, the court will adopt the amended report and recommendation. Bates s objections are overruled because they merely repeat arguments already considered by Judge Smith. Judge Smith properly found that Bates s claim of ineffective assistance of appellate counsel does not affect the disposition of his habeas corpus petition because Bates does not present an actionable federal constitutional claim. In his objection, Bates also requests the court to appoint counsel, presumably to assist in this habeas proceeding, as he has been transferred to a facility without a law library or inmate legal aid. The court construes this as a motion which it will deny. Accordingly, the court ORDERS as follows: (1) Judge Smith s amended report and recommendation (R. 26) is ADOPTED as the opinion of the court. (2) Bates s petition for a writ of habeas corpus (R. 1) is DENIED. (3) A certificate of appealability is DENIED for the reasons stated in Section III of Judge Smith s recommendation. (4) Bates s construed motion to appoint counsel is DENIED. (5) This matter shall be CLOSED and STRICKEN from the active docket. A separate judgment will issue. Signed on January 24, 2012

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