United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court on the Report and Recommendation entered by Magistrate Judge Candace J. Smith [DE 28]. Said action was referred to the magistrate judge for the purpose of reviewing the merits of Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 25]. No objections to the Report and Recommendation have been filed, and this matter is now ripe for a decision.
In her Report and Recommendation, the Magistrate Judge recommends that the Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 be denied without prejudice as his direct appeal is still pending and his Motion is, therefore, premature. Generally, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge." 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Report and Recommendation, as in the case sub judice, "[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." Thomas v. Arn, 474 U.S. 140, 150 (1985). Consequently and in the absence of any objections from Defendant Umanzor-Pleytes, this Court adopts the reasoning set forth in the Report and Recommendation as to Umanzor-Pleytes' Motion as its own.
Finally, the Court considers whether a certificate of appealability should issue in this matter with respect to those claims raised under 28 U.S.C. § 2255. "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, Defendant must be able to show that reasonable jurists could find in his favor, and the Aquestion is the debatability of the underlying federal constitutional claim, not the resolution of that debate." Miller-El v. Cockrell, 537 U.S. 322, 342 (2003). Having carefully considered the matter, this Court concludes that no certificate should issue as Umanzor-Pleytes cannot make a substantial showing of the denial of a constitutional right. Accordingly, IT IS ORDERED:
(1) that the Magistrate Judge's Report and Recommendation [DE 28] is ACCEPTED and ADOPTED; and
(2) that Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 25] is DENIED WITHOUT PREJUDICE. Further, because this dismissal is without prejudice based on the prematurity of the Defendant's Motion, the Court does not intend for the resolution of this Motion to require any subsequent petition to ...