Report and Recommendation

SONJA F. BIVINS, Magistrate Judge.

Petitioner Timothy Odom ("Odom"), an Alabama prisoner proceeding pro se, has filed a petition seeking habeas corpus relief under 28 U.S.C. § 2254 (Doc. 1). The petition, which has been fully briefed and is ripe for adjudication, has been referred to the undersigned Magistrate Judge for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(R). Based upon a thorough review of the petition, the briefs and supporting materials, the undersigned finds that an evidentiary hearing is not warranted 1 and that the petition is due to be denied. Accordingly, it is recommended that Odom's habeas petition be denied in its entirety and that judgment be entered in favor of Respondent and against Petitioner, Timothy Odom, and that if Odom seeks the issuance of a certificate of appealabilty, his request be denied, along with any request to appeal in forma pauperis.

I. FINDINGS OF FACT

Odom was charged with one count of first-degree rape, one count of first-degree sodomy, and one count of sexual abuse of a child less than twelve years of age. T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013);(Doc. 7-10 at 1-3). The jury returned guilty verdicts against Odom on all three counts. Id. The trial court sentenced Odom to consecutive terms of life imprisonment for the first-degree rape and first-degree sodomy convictions and 20 years imprisonment for the sexual abuse conviction. Id.

The Alabama Court of Criminal Appeals found the facts of this case to be as follows:2

Id. (Footnotes omitted).

Odom sought a new trial based primarily on claims of insufficient evidence, juror misconduct, and the recanting of the victim's testimony. (Doc. 7-3 at 41). Following a hearing at which various witnesses testified, the trial court, on August 5, 2011, denied the motion. (Doc. 7-3 at 55). Odom then filed a direct appeal with the Alabama Circuit Court of Criminal Appeals. (Doc. 7-8). He raised the following claims: (1) the sufficiency and weight of the evidence were insufficient to sustain his convictions, (2) his counsel was ineffective because he failed to call additional witnesses, failed to introduce Odom's medical records, and failed to make certain objections during trial, (3) juror misconduct prejudiced the verdict, (4) the trial court erred in refusing to give a requested jury charge, and (5) the victim's testimony was perjured. (Doc. 7-8). The Alabama Court of Criminal Appeals affirmed Odom's convictions in an unpublished memorandum opinion on February 1, 2013. (Doc. 7-10). Following the denial of Odom's application for rehearing (doc. 7-12 at 32), he sought certiorari review before the Alabama Supreme Court on two grounds: 1)ineffective assistance of counsel3; and 2)juror misconduct. (Doc. 7-12). On May 10, 2013, the Alabama Supreme Court denied certiorari and a certificate of judgment issued. (Doc. 7-1 at 2).

On March 16, 2014, 4 Odom filed the instant petition for a writ of habeas corpus setting forth three grounds for habeas relief: (1) Insufficient Evidence to Support the Verdict, (2) Ineffective Assistance of Counsel, and (3) Juror Misconduct Prejudicing Verdict. (Doc. 1). The Respondent filed a response in opposition (doc. 7), and Odom filed a reply (Doc. 8). Nearly a year later, Odom filed a supplement to his petition, and sought to raise, for the first time, new claims. (Doc 12). This action is now ripe for adjudication.

II. STANDARD OF REVIEW FOR HABEAS CORPUS RELIEF

This court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "§ 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000). Section 2254(d) provides that " habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C § 2254(d)(1), (2).

Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000). Moreover, the burden of rebutting a presumption of correctness of the state courts' decision by clear and convincing evidence is on the petitioner. 28 U.S.C. § 2254(e); Hill v. Linahan, 697 F. 2d. 1032, 1036 (11th Cir. 1983) ("The burden of proof in a habeas proceeding is always on the petitioner.") (citing Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. 1981)).

With the grounds of review established, the court will now address Odom's claims.

III. DISCUSSION

A. Issues raised in original petition

1. Insufficient Evidence to Support the Verdict.

Odom argues in his original petition that he is entitled to relief under 28 U.S.C. § 2254 because the evidence was not sufficient to support his convictions. (Doc. 1 at 4, 17). Respondent asserts, and the record confirms, that this claim is procedurally defaulted because Odom failed to properly exhaust the claim. While Odom presented this claim to the Alabama Court of Criminal Appeals, 5 he did not raise it in his petition for certiorari review before the Alabama Supreme Court. (Doc. 7 at 6-7). Thus, the claim is procedurally defaulted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L. Ed. 2d 1 (1999)("[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process," including review by the state's court of last resort, even if review in that court is discretionary.). To obtain habeas relief, generally, a state prisoner must exhaust available state remedies prior to seeking federal habeas corpus relief. See 28 U.S.C. § 2254(b)(1); Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L. Ed. 2d 368 (2006). The Eleventh Circuit has succinctly stated the rule as follows:

Cargile v. Sec'y Dep't of Corrs., 349 F. App'x 505, 507 (11th Cir. 2009). In Alabama, exhaustion of a claim requires raising the claim through the state courts to the Supreme Court of Alabama. See Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir. 2004)("Under Alabama law, `one complete round' of review [] includes: (1) filing a petition for certiorari in state circuit court; (2) appealing the denial of that petition to the Alabama Court of Criminal Appeals; (3) petitioning the Alabama Court of Criminal Appeals for rehearing; and (4) seeking discretionary review in the Alabama Supreme Court. . ."). Failure to exhaust state court remedies generally results in the "preclusion of review in the federal court." Woodford v. Ngo, 458 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d. 368 (2006) ("Thus, if state-court remedies are no longer available because the prisoner failed to comply with the deadline for seeking state-court review or for taking an appeal . . . the petitioner procedurally defaulted those claims [and] generally is barred from asserting those claims in a federal habeas proceeding.").

Here, Odom failed to exhaust this claim because he did not present it in his certiorari petition filed with the Alabama Supreme Court. And, no state remedy remains by which Odom may now present his unexhausted claim because any attempt to exhaust the claim in state court would be barred by applicable state procedural rules. In short, it is too late for Odom to file another petition for writ of certiorari presenting this claim to the Alabama Supreme Court.

This court may a reach a procedurally defaulted claim only in two narrow circumstances:

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

Odom asserts that he can overcome the procedural default of this claim because he is actually innocent of the charges for which he was convicted. (Doc. 7 at 1-3). Aside from his conclusory assertions that he is actually innocent, Odom has failed to come forth with new evidence that establishes "it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 115 S.Ct. 851, 130 L. Ed. 2d 808 (1995). Consequently, his claim that the evidence was not sufficient to sustain his convictions is procedurally defaulted and thus foreclosed from federal habeas review6.

2. Ineffective Assistance of Trial Counsel

The Sixth Amendment requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. CONST. Amend. VI, and that counsel must also be effective. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Odom claims he was denied this constitutional right to effective counsel.

a. Failure to Call Additional Character Witnesses

Odom seeks relief under § 2254 based on his trial counsel's failure to present all available witnesses on his behalf at the trial. (Doc. 1 at 18-19). As Respondent asserts, this claim was raised in the state courts and denied on the merits. In its denial, the Alabama Court of Criminal Appeals discussed the correct standard for ineffective assistance of counsel claims as follows:7

To prove prejudice — the second prong of the Strickland test — "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693.

T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013) (Doc. 7-10 at 9-10).

The Alabama Court of Criminal Appeals reasoned:

T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013) (Doc. 7-10 at 11).

This court will not grant relief on a claim that has been adjudicated on the merits by the state courts unless the decision rendered was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Having reviewed the record in this case, the undersigned determines that the state appellate court's determination regarding counsel's performance was reasonable, and Odom has failed to establish that his counsel was ineffective in violation of the governing standard found in Strickland v. Washington, 466 U.S. 668 (1984), for failing to call additional character witnesses to testify at his trial.

Failure to call a witness to testify at trial must be distinguished from the failure to reasonably investigate and locate a witness, which can serve as a colorable claim of ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (observing that trial "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" (quoting Strickland, 466 U.S. at 690-91)). The record shows that Odom's defense counsel called seven witnesses during the criminal trial to testify regarding Odom's good character and to impeach the testimony given by the State's witnesses. Odom offers no facts that suggest that the testimony of these twelve additional individuals would have strengthened his defense. 8 Instead, as articulated by the appellate court, the testimony of the potential witnesses would have been at most, merely cumulative of the testimony offered on Odom's behalf and would not have changed the outcome of his trial. Thus, Odom has not met the heavy burden of showing deficient performance and prejudice with regard to this allegation. Strickland, 466 U.S. at 687-90 (Petitioner has the burden of proving, by a preponderance of the evidence, that counsel's performance was unreasonable and "outside the wide range of professionally competent assistance.").

Accordingly, the undersigned finds that the decision of the Alabama Court of Criminal Appeals was a reasonable determination of the facts in light of the evidence presented, see 28 U.S.C. § 2254(d)(2), and that the Alabama courts rendered a decision that is neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Therefore, Odom's claim that his constitutional rights were violated by his counsel's failure to present additional character witnesses should be denied.

b. Failure to Introduce Medical Records

Odom argues that his trial counsel was "deficient for not presenting medical documentation as evidence in the trial" to support testimony that he was physically incapable of committing the charged offenses due to his health status.9 (Doc. 1 at 22). This claim was presented to the state courts where it was denied,10 with the Alabama Court of Criminal Appeals stating:

T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013) (Doc. 7-10 at 13).

As noted supra, this court will not grant relief on a claim that has been adjudicated on the merits by the state courts unless the decision rendered was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Having reviewed the record in this case, the undersigned determines that the state appellate court's determination regarding counsel's performance was reasonable, and Odom has failed to establish that his counsel was ineffective in violation of the governing standard found in Strickland v. Washington, 466 U.S. 668 (1984), for failing to introduce his medical records.

Indeed, as observed by the Alabama Court of Criminal Appeals, Odom's counsel solicited testimony from him regarding his various health conditions and T.O., Odom's ex-wife and the mother of the victim, acknowledged the existence of Odom's various health conditions, and the fact that they could have contributed to the lack of intimacy during their marriage. Given this unrebutted evidence regarding Odom's health conditions, and the effect of such conditions, the undersigned finds, as did the Court of Appeals, that the medical records would have been cumulative of the evidence already produced. And, it is quite likely that defense counsel reached the same conclusion. Odom does not contend that his counsel failed to investigate his medical condition. To the contrary, he acknowledges that "[his counsel] had the records but he didn't show them." (Doc. 7-7 at 82-83). Given the totality of the circumstances, including his testimony, and that of T.O., defense counsel could have reasonably concluded that the medical records would have been merely cumulative of evidence that had already been presented to the jury. See Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir.2001)("We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately."); Singleton v. Thigpen, 847 F.2d 668, 670 (11th Cir.1988) (A federal court must apply a "heavy measure of deference to counsel's judgments." (quoting Strickland, 446 U.S. at 691)).

Furthermore, in light of the strong evidence of guilt in this case, Odom has not demonstrated a reasonable probability that absent his counsel's alleged error in not introducing his medical records into evidence, the outcome of his trial would have been different. See Strickland, 466 U.S. at 694 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.).

Accordingly, the undersigned finds that the decision of the Alabama Court of Criminal Appeals was a reasonable determination of the facts in light of the evidence presented, see 28 U.S.C. § 2254(d)(2), and that the Alabama courts rendered a decision that is neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Therefore, Odom's claim that his constitutional rights were violated by his counsel's failure to present his medical records should be denied.

3. Juror Misconduct

Odom contends that his Sixth Amendment right to a trial by an impartial jury was violated due to juror misconduct. (Doc. 1 at 24-26). This claim was previously adjudicated on the merits within the state courts. Thus, as noted supra, pursuant to 28 U.S.C. § 2254(d), this court can only grant relief if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or if the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d); Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000).

Odom's juror misconduct claim is based on juror K.M.'s alleged untruthfulness during voir dire. (Doc. 1 at 24). According to Odom, while he was employed as a part-time bouncer at the "Ace of Hearts" bar, he once had to escort K.M. out of the establishment, and an altercation ensued between the two. (Id.; T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013)). (Doc. 7-10 at 14). Odom contends that as a result of the alleged altercation, K.M. was biased against him, and should have revealed said bias during the during the voir dire process, but failed to do so. Odom also asserts that during the voir dire process, K.M. denied knowing him or having any interest in the conviction or acquittal of Odom. T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013) (Doc. 7-10 at 14).

In affirming the trial court's denial of Odom's motion for a new trial on this ground, the Alabama Court of Criminal Appeals determined that:

T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013) (Doc. 7-10 at 17).

After a review of the record, the undersigned concludes that the state appellate court's finding is not "contrary to, or involve[s] an unreasonable application of, clearly established Federal law," or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Nor has Odom shown by clear and convincing evidence that the state court's factual findings resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. § 2254(d). The record reflects that while Odom recognized K.M. during jury selection as someone with whom he was familiar, it was not until after the trial that Odom recalled the alleged altercation between him and K.M. From the record, it is not clear when the alleged altercation took place, and Odom has pointed to no facts suggesting that K.M. did not respond truthfully to questions posed during the voir dire process. Simply put, if Odom did not recall the circumstances surrounding his familiarity with K.M. until after the trial had concluded, it is equally likely that K.M. did not recall the alleged altercation with Odom. This is particularly true since it is alleged that K.M. was intoxicated when the altercation occurred. Given the absence of any evidence suggesting that K.M. was biased, and purposefully provided false testimony during the voir dire process, Odom has failed to carry his burden of establishing his entitlement to habeas relief on this issue.

The same holds true with respect to Odom's claim that during a jury break in the trial, juror K.M. was overheard telling another juror of his intent to vote guilty. The appellate court, finding no prejudice, reasoned:

T.O. v. State of Alabama, CR-10-1889 (Ala. Crim. App. 2013) (Doc. 7-10 at 17).

Integral to the right to an impartial jury is the requirement that a jury base its verdict on the evidence presented at trial. See Turner v. State of Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L. Ed. 2d 424 (1965). "In any trial, there is initially a presumption of jury impartiality; prejudice will not be presumed, but can be demonstrated by a defendant by a preponderance of credible evidence." United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L. Ed. 2d 34 (1979) (citations omitted). "Such prejudice may be shown by evidence that extrinsic factual matter tainted the jury's deliberations; any `prejudicial factual intrusion' denies a defendant his rights to trial by an impartial jury and to challenge the facts adverse to him that are made known to the jury." Id. (quoting United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L. Ed. 654, 656 (1954)); see also Reynolds v. United States, 98 U.S. 145, 155, 25 L. Ed. 244 (1878) ("The theory of the law is that a juror who has formed an opinion cannot be impartial.").

In this case, Odom has failed to prove partiality on the part of any juror. During the hearing on Odom's motion for a new trial, his counsel questioned three jurors regarding juror misconduct and communications or conversations held outside of the deliberation room. Each denied any improper communications took place. Aside from his conclusory assertions, Odom has not pointed to any evidence that suggests that Juror K.M. engaged in improper conduct or that any of the jurors were exposed to extrinsic factual matter which tainted their deliberations. (Doc. 7-7 at 79-82). Accordingly, Odom has failed to demonstrate that the state courts unreasonably applied federal law or that their decisions "w[ere] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[s];" therefore, the undersigned concludes that the state court decisions were reasonable in light of the evidence presented, and that this claim should be denied.

B. Issues raised in supplement

In his pleading titled "Supplemental Issues," which was filed more than a year after Odom's original petition, he attempts to raise, for the first time, several new issues. (Doc. 12). He claims that the prison sentence he is currently serving is illegal because it exceeds the maximum sentence allowed by law due to the application of a state parole statute, as well as ineffective assistance of trial counsel for failing to advise him of the effects of the parole statute. (Doc. 12 at 2-4). The undersigned observes at the outset that Odom has not complied with Fed.R.Civ.P. 15 (a) in that he did not seek leave of Court to amend his petition, nor has he filed anything demonstrating the written consent of the Respondent.11

Moreover, the claims Odom seeks to raise in his supplement are barred by the statute of limitations. Pursuant to 28 U.S.C. § 2244 (d)(1), a state prisoner seeking a federal habeas corpus remedy must file his federal petition within one year of the "conclusion of direct review or the expiration of the time for seeking such review." The Act provides that:

28 U.S.C. § 2244 (d).

As noted above, AEDPA imposes a one-year limitations period on § 2254 actions and includes one of several commencement dates, including "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); see also Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006). In this case, the Alabama Supreme Court, on May 10, 2013, denied certiorari review following the Alabama Court of Criminal Appeals denial of Odom's direct appeal and issued a Certificate of Judgment. (Doc. 7-1 at 2). Adding ninety days for the time in which to seek review before the U.S. Supreme Court, Odom's conviction became final on August 9, 2013, and he had one year, or until August 9, 2014 to file his federal habeas petition, absent a tolling event. 12 Odom timely filed his original petition on March 16, 2014, but his supplement was not filed until more than a year later, on May 28, 2015. (Doc. 12). While Section 2244(d)(2) provides for the tolling of the limitations period pending state court review of a properly filed application for post-conviction relief, see In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006), the filing of Odom's federal habeas petition did not toll the limitations period. Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L. Ed. 2d 251 (2001)(application for federal habeas corpus review does not toll the one-year limitation period under section 2244(d)(2)). Thus, the limitation period kept running and expired on August 9, 2014, nearly ten months before Odom filed his supplement.

Odom's supplement, filed on May 28, 2015, was untimely unless the claims raised in the supplement "relate back" to the claims in Odom's original petition. See Fed.R.Civ.P. 15 (c) 13; Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L. Ed. 2d 582 (2005). In Felix, the Supreme Court discussed the "relation back" doctrine in the context of habeas actions, and acknowledged that an amendment may relate back in time to the original filing if the amendment relates to a factual event or transaction in the original petition. Adopting the position espoused by the majority of circuits, the Supreme Court held that relation back can occur only "when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in `both time and type' from the originally raised episodes." Id. at 657; see also McLean v. United States, 2005 U.S. App. LEXIS 19546, 2005 WL 2172198, *1 (11th Cir. Sept. 8, 2005).

The claims that Odom seeks to raise in his supplement do not relate back to the claims in his original petition. In the supplement, Odom claims that the sentence he is currently serving is illegal because it exceeds the maximum sentence allowed by law due to the application of a state parole statute. He also claims that his counsel was ineffective for falling to advise him of the effects of the parole statute. None of the claims in his original petition involve the state parole statute. While Odom did assert ineffective assistance of counsel claims in his original petition, they all pertain to his counsel's performance at trial as opposed to advice he gave regarding the parole statute. Simply alleging some form of ineffective assistance in his original petition is not enough to entitle Odom to add an entirely new claim of ineffective assistance in his supplement. See Edney v. Sec'y, Fla. Dep't of Corr., 2014 U.S. Dist. LEXIS 18850 (N.D. Fla. Jan. 15, 2014)(claim in amended petition that trial counsel was ineffective for failing to investigate and challenge the victim's competence did not relate back to ineffective assistance claims raised in original petition — including that counsel was ineffective for failing to procure the use of an expert to discredit the credibility of the alleged victim). Accordingly, the claims in the supplement are untimely because they do not relate back to the timely claims in the original petition.

IV. Certificate of Appealability

Pursuant to Rule 11(a) of the Rules Governing § 2254 Proceedings, the undersigned recommends that a certificate of appealability in this case be DENIED. 28 U.S.C. § 2254, Rule 11(a) ("[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

Where a habeas petition is being denied on procedural grounds without reaching the merits of an underlying constitutional claim, "a COA should be issued [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 146 L. Ed. 2d 542 (2000). Where a habeas petition is being denied on the merits of an underlying constitutional claim, a certificate of appealability should be issued only when the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. ("To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot [v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394 77 L. Ed. 2d 1090 (1983)], includes showing 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.") (internal quotation marks omitted); accord Miller El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L. Ed. 2d 931 (2003).

Odom's petition does not warrant the issuance of a certificate of appealability as this Court is without jurisdiction to entertain portions of his claim, and the remaining claims are meritless. Indeed, under the facts of this case, a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition or that Petitioner should be allowed to proceed further. Accordingly, the undersigned recommends that the Court conclude that no reasonable jurist could find it debatable whether Odom's petition should be dismissed and as a result, he is not entitled to a certificate of appealability.

V. Conclusion

Based on the foregoing, it is the recommendation of the undersigned Magistrate Judge that Odom's petition for habeas corpus relief be denied, that this action be dismissed, and that judgment be entered in favor of the Respondent, and against the Petitioner, Timothy Odom. It is further recommended that any motion for a Certificate of Appealability or for permission to appeal in forma pauperis be denied.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); S.D. ALA GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing done by the Magistrate Judge is not specific.