Biddy v. Mo. Dep't of Corr.

RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE

MEMORANDUM AND ORDER

This matter is before the Court on the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by George Biddy. The Court referred this matter to United States Magistrate Judge David D. Noce for a report and recommendation on all dispositive matters pursuant to 28 U.S.C. § 636(b). On April 14, 2017, Judge Noce filed his Report and Recommendation that petitioner's habeas petition should be denied. [25]. Petitioner filed a motion for certificate of appealability in which he simply reargues his underlying grounds for relief. I have conducted a de novo review of all matters relative to petitioner's objections. After careful consideration, I will adopt and sustain Judge Noce's thorough Report and Recommendation in its entirety as I agree with Judge Noce that petitioner is not entitled to relief for the reasons set out in the Report and Recommendation.

I have also considered whether to issue a certificate of appealability. To grant a certificate of appealability, the Court must find a substantial showing of the denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Because petitioner has not made such a showing, I will not issue a certificate of appealability.

Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation filed on April 14, 2017 [25] is adopted and sustained in its entirety.

IT IS FURTHER ORDERED that petitioner's motion for certificate of appealability [26] is denied.

IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus [1] is denied.

IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.

A separate judgment in accordance with this Memorandum and Order is entered this same date.

/s/_________

RODNEY W. SIPPEL

UNITED STATES DISTRICT JUDGE Dated this 1st day of May, 2017.