Opinion
6:12-cr-00013-GFVT-CJS-1 6:16-cv-00209-GFVT-CJS
08-08-2017
UNITED STATES OF AMERICA, Respondent, v. MABLE ASHLEY JENKINS, Petitioner.
ORDER
*** *** *** ***
This matter is before the Court pending review of the Report and Recommendation of United States Magistrate Candace J. Smith [R. 87] filed herein on July 5, 2017. Consistent with local practice, the Magistrate's Report and Recommendation addresses Jenkins's writ of habeas corpus under 28 U.S.C. § 2255. Judge Candace recommends that this Court dismiss with prejudice Jenkins's Motion under 28 U.S.C. § 2255 [R. 75]; deny a certificate of appealability; and enter judgment in favor of the United States.
Judge Smith found that Jenkins's claim was untimely, as a one-year statute of limitations applies to § 2255 motions and has not met any of the exceptions to the one year filing deadline. [R. 87 at 7.] Further, Jenkins's claims failed on the merits, as the errors she claims did not amount to a miscarriage of justice. [Id. at 8.] Judge Smith recommended that no evidentiary hearing be held as the record did not conclusively demonstrate Jenkins was entitled to relief. [Id. at 15.] Finally, Judge Smith recommends a Certificate of Appealability be denied because the Defendant has not made a substantial showing of denial of a Constitutional right.
Judge Smith's Report and Recommendation advised the parties that any objections to the Recommendation must be filed within fourteen (14) days of service or waive the right to further appeal. [R. 87 at 17.] As of this date, neither party has filed any objections nor sought an extension of time to do so. Generally, this Court must make a de novo determination of those portions of a recommended disposition to which objections are made. 28 U.S.C. § 636(b)(1)(c). When no objections are made, however, this Court is not required to "review . . . a magistrate's factual or legal conclusions, under a de novo or any other standard . . . ." Thomas v. Arn, 474 U.S. 140, 150 (1985). Parties who fail to object to a Magistrate's report and recommendation are also barred from appealing a district court's order adopting that report and recommendation. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Nevertheless, this Court has examined the record, and it agrees with the Magistrate Judge's Recommended Disposition. Furthermore, the Court declines to issue a certificate of appealability. The Court determines that reasonable jurists would not find the denial of Rose's § 2254 motion debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED:
1. The Magistrate's Recommended Disposition [R. 98] as to Mable Ashley Jenkins is ADOPTED as and for the Opinion of the Court;
2. Jenkins's petition [R. 75] is DENIED;
3. A Certificate of Appealability is DENIED; and
4. JUDGMENT in favor of the Respondent will be entered contemporaneously herewith and Case Numbers 6:12-cr-00013-GFVT-CJS-1 and 6:16-cv-00209-GFVT-CJS will be STRICKEN from the Court's active docket.
This the 8th day of August, 2017.
/s/
Gregory F. Van Tatenhove
United States District Judge