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deferring to the post-conviction motion court's credibility determination where the motion court did not believe the habeas petitioner's testimony that his plea counsel guaranteed he would receive a three-year sentence for an armed criminal action charge and probation on remaining counts
Summary of this case from Goldsby v. RussellOpinion
Case No. 4:10CV1659 RWS
06-18-2013
RODNEY TWITTY, Petitioner, v. TERRY RUSSELL, Respondent.
MEMORANDUM AND ORDER
This matter is before the Court on the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Rodney Twitty. The Court referred this matter to United States Magistrate Judge Thomas C. Mummert, III for a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b). On May 23, 2013, Judge Mummert filed his recommendation that petitioner's habeas petition should be denied. Petitioner did not object to the Report and Recommendation, and his time for doing so has now expired.
After careful consideration, I will adopt and sustain Judge Mummert's Report and Recommendation in its entirety. I have also considered whether to issue a certificate of appealability. To grant a certificate of appealability, the Court must find a substantial showing of the denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Because petitioner has not made such a showing, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation filed on May 23, 2013 [#15] is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Petitioner Rodney Twitty's Petition for Writ of Habeas Corpus is denied.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate judgment in accordance with this Memorandum and Order is entered this same date.
______________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE