The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONNIE W. BROWN, )
)
Petitioner, )
)
v. ) 2:21-cv-00354-LSC-SGC
)
KENNETH PETERS, et al., )
)
Respondents. )
MEMORANDUM OPINION
The magistrate judge entered a report on September 3, 2021, recommending
the court deny Petitioner Donnie W. Brown’s motion for abeyance and dismiss this
action without prejudice. (Doc. 3). Specifically, the magistrate judge determined
Brown’s motion does not raise any ground on which he claims he is being held in
violation of the Constitution or laws of the United States and, therefore, the motion
cannot be construed as a petition for a writ of habeas corpus. (Doc. 3 at 2). On
September 24, 2021, Brown filed objections to the magistrate judge’s report and
recommendation. (Doc. 4).
In his objections, Brown contends he “just started on [his] Rule 32” and,
therefore, cannot assert any claim for relief at this time. (Doc. 4 at 1).1 Because
1 Brown also requests information regarding the time-period for filing a federal habeas petition.
(Doc. 4 at 1). While the court cannot give Brown legal advice, the one-year limitation period for
filing a federal habeas petition by a person in custody pursuant to a state court judgment is
addressed in 28 U.S.C. § 2244(d)(1). In addition, 28 U.S.C. § 2244(d)(2) provides that the one-
Brown concedes he has not raised any ground for relief in the present action, his
motion for abeyance cannot be construed as a petition for a writ of habeas corpus,
and this action warrants dismissal.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and Brown’s objections, the
court ADOPTS the magistrate judge’s report and ACCEPTS her recommendation.
Accordingly, this action is due to be due to be dismissed without prejudice.
To the extent it may be required, this court DENIES a certificate of
appealability. The court may issue a certificate of appealability “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
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 quotations omitted). Based
on the foregoing, Brown has failed to make the requisite showing.
The court will enter a separate order.
year limitation period is tolled while a “properly filed” application for state post-conviction or
other collateral review is pending.
DONE and ORDERED on November 2, 2021.
L. Scott
United States District Judge
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