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Dupree v. Mitchem

United States District Court, N.D. Alabama, Middle Division

July 14, 2015

JOHN D. DUPREE, Petitioner,
v.
BILLY MITCHEM and THE ATTORNEY GENERAL FOR THE STATE OF ALABAMA, Respondents.

MEMORANDUM OPINION

KARON OWEN BOWDRE, Chief District Judge.

On May 5, 2015, the magistrate judge entered a Report and Recommendation, (doc. 26), recommending that the remaining claim in this petition for writ of habeas corpus be dismissed with prejudice. No objections have been filed.[1] The court has considered the entire file in this action, together with the report and recommendation, and has reached an independent conclusion that the report and recommendation is due to be adopted and approved.

The court finds that, to the extent Dupree raised his claims of ineffective assistance of counsel by Bone in his Rule 32 proceeding, the dismissal of such claim by the Alabama Court of Criminal Appeals was not contrary to or an unreasonable application of Strickland. Alternatively, the court finds that if the specific challenges to Bone's representation were not encompassed in his Rule 32 proceeding, then that claim is procedurally barred.

Accordingly, the court ADOPTS and approves the findings and recommendation of the magistrate judge as the findings and conclusions of this court. The petition for writ of habeas corpus is due to be DISMISSED. A separate Order will be entered.

This court may issue a certificate of appealability "only if the applicant has a made a substantial showing of the denial of a constitutional right." 28 U.S.C. ยง 2253(c)(2). To make such a showing, a "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong, " Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that "the issues presented were adequate to deserve encouragement to proceed further, " Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal ...


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