U.S. v. Henson

Full title: UNITED STATES OF AMERICA PLAINTIFF v. ROBERT HENSON DEFENDANT

Court: United States District Court, E.D. Kentucky, Central Division at Lexington

Date published: Mar 4, 2011

CRIMINAL ACTION NO. 5:08-CR-79-KKC (E.D. Ky. Mar. 4, 2011)

Opinion

CRIMINAL ACTION NO. 5:08-CR-79-KKC.

March 4, 2011

OPINION ORDER

KAREN CALDWELL, District Judge

This matter is before the Court upon the Defendant's Motion to Vacate filed pursuant to 28 U.S.C. § 2255 [DE 159]. Consistent with local practice, this matter was referred to the United States Magistrate Judge for consideration.

The Magistrate Judge filed a Report and Recommendation [DE 162] in which he recommends that the motion be denied as time-barred and that a certificate of appealability should not be issued. The Defendant filed objections to the Report and Recommendation [DE 163]. This Court must make a de novo determination of those portions of the Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(C).

The Magistrate Judge found that the Defendant missed the statutory one-year period available for filing a section 2255 motion. The Magistrate Judge also found that equitable tolling based on a freestanding claim of actual innocence does not apply because the Defendant has not met the gateway showing for actual innocence. See House v. Bell, 547 U.S. 518, 537 (2006). While the Defendant concedes that he missed the statutory one-year period for filing his motion, he objects to the Magistrate Judge's finding that equitable tolling based on actual innocence does not apply. However, the Defendant still has not submitted even a description of any possible exculpatory evidence to support his actual innocence claim. Thus, the Court agrees with the Magistrate Judge that equitable tolling does not apply.

Having considered the Defendant's objections, which the Court finds to be without merit, and having examined the record and made a de novo determination, the Court hereby adopts the Magistrate Judge's proposed findings of fact and conclusions of law.

Accordingly, the Court HEREBY ORDERS that:

(1) The Magistrate Judge's Report and Recommendation [DE 162] is ADOPTED as and for the opinion of the Court;

(2) The Defendant's objections to the Magistrate Judge's Report and Recommendation [DE 163] are OVERRULED;

(3) For the reasons stated in this Opinion and Order and the Magistrate Judge's Report and Recommendation, the Motion to Vacate [DE 159] is DENIED;

(4) A Certificate of Appealability SHALL NOT BE ISSUED; and

(5) Judgment will be entered contemporaneously with this Opinion and Order.

Dated this 4^th day of March, 2011.