The opinion of the court was delivered by: Herndon, Chief Judge:
Before the Court is a Report and Recommendation (R&R) (Doc. 20), issued on February 15, 2013, by United States Magistrate Judge Philip M. Frazier recommending that the Court deny petitioner Eddie Jason Miller's motion for summary judgment and motion for an evidentiary hearing (Docs. 12, 16), grant respondent's motion to dismiss (Doc. 14), and dismiss petitioner's § 2254 petition for a writ of habeas corpus as untimely.
Upon issuance, the R&R was sent to the parties with a notice informing them of their right to file objections within fourteen days of service (See Doc. 20-1). Thus, the parties' objections were due on or before March 4, 2013. Neither party filed objections to the R&R. Therefore, pursuant to 28 U.S.C. § 636(b), this Court need not conduct a de novo review. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Accordingly, the Court ADOPTS the R&R (Doc. 20) in its entirety. Thus, the Court DENIES petitioner's motion for summary judgment (Doc. 12), DENIES petitioner's motion for an evidentiary hearing (Doc. 16), GRANTS respondent's motion to dismiss (Doc. 14) and thus DISMISSES with prejudice petitioner's § 2254 petition for habeas corpus as untimely (Doc. 1). The Clerk is instructed to enter judgment accordingly.
Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the Court must consider whether it should grant petitioner a certificate of appealability. To obtain a certificate of appealability, a petitioner must make a substantial showing of the denial of a constitutional right by establishing "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When the court dismisses a petition on procedural grounds, the determination of whether a certificate of appealability should issue has two components. Id. at 484--85. First, the petitioner must show that reasonable jurists would find it debatable whether the court was correct in its procedural ruling. Id. at 484. Next, the petitioner must show that reasonable jurists would find it debatable whether the petition states a valid claim for denial of a constitutional right. Id. To obtain a certificate of appealability, the petitioner must satisfy both components. Id. at 485.
The R&R finds that petitioner's one-year limitations period expired on March 6, 2009. Thus, petitioner's § 2254 petition filed on October 21, 2011, is untimely. The R&R further notes that while petitioner attempts to excuse his delay with a conclusory allegation that he has been in a continual state of lockdown with no access to law library services, such vague assertions are insufficient to demonstrate additional grounds for tolling. As stated above, the Court adopts this finding as its own. The Court instantly finds reasonable jurists would not debate the correctness of this ruling. Accordingly, the Court DENIES petitioner a certificate of appealability.
Digitally signed by Herndon David R. Chief Judge United States District Court
Date: 2013.03.18 16:54:55 ...