Greenwell v. Crews, No. 5:2012cv00127 - Document 9 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) 8 REPORT AND RECOMMENDATION is ACCEPTED and ADOPTED; (2) 5 MOTION to Dismiss, Or in the Alternative, MOTION for Extension of Time to File Answer is GRANTED IN PART and DENIED AS MOOT IN PART; (3) 1 Petition for Writ of Habeas Corpus is DISMISSED; (4) no certificate of appealability will issue. Signed by Judge Joseph M. Hood on 11/06/2012.(DAK)cc: COR,Pro Se Pla(via US Mail)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON KELLY WAYNE GREENWELL, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. COOKIE CREWS, Warden, Kentucky State Reformatory Defendant. Civil Case No. 12-cv-127-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court on the Report and Recommendation of Magistrate Judge Candace J. Smith [Record No. 8]. Said action was referred to the magistrate for the purpose of reviewing the merit of Petitioner Greenwell=s Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. ' 2254 [Record No. 1], in which he challenges his incarceration for a conviction in a Kentucky state court. Defendant filed an Motion to Dismiss or, in the Alternative, a Motion for Extension of Time to File an Answer [Record No. 5] in response to the Petition, arguing that the limitations Petition is time-barred period. In her Report under and the applicable Recommendation, the Magistrate Judge agrees with that assessment and recommends that the Petition be dismissed. The Magistrate Judge filed her Report and Recommendation on August 17, 2012, advising Greenwell that particularized objections to same were due within fourteen days of the date of service of the Report and Recommendation or further appeal would be waived. That time has now expired, and Greenwell has filed no objections. Aa Generally, determination proposed judge.@ of judge those findings or of the portions court of recommendations 28 U.S.C. ' 636. shall the make report made by a or the de novo specified magistrate However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, A[i]t does not appear that Congress intended to require district court review of a magistrate=s factual or legal conclusions, under a de novo or any other standard.@ Arn, 474 U.S. 140, 150 (1985). Thomas v. Consequently, this Court adopts the reasoning set forth in the Report and Recommendation as its own. Further, this matter. no certificate of appealability shall issue in A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In order for a certificate to issue, Petitioner must be able to show that reasonable jurists could find in his favor, and the question is constitutional the debatability claim, not the of the resolution underlying of Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). that federal debate. In this case, reasonable jurists would not debate the denial of Petitioner s § 2254 motion or conclude that the issues presented are adequate to deserve encouragement to proceed further. See id. Accordingly, IT IS ORDERED: (1) that the Report and Recommendation of Magistrate Judge Candace J. Smith [Record No. 8] is ACCEPTED and ADOPTED; (2) that Defendant s Motion to Dismiss or, in the Alternative, a Motion for Extension of Time to File an Answer [Record No. 5] is GRANTED IN PART and DENIED AS MOOT IN PART; (3) that Greenwell=s Petition for a Writ of Habeas Corpus [Record No. 1] is DISMISSED; (4) that no certificate of appealability will issue. This the 6th day of November, 2012.

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