IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOSHUA UZIEL HUNTER, : 

Petitioner, : 

CIVIL ACTION 09-0692-WS-M 

v. : 

CRIMINAL ACTION 08-00053-WS-M 

UNITED STATES OF AMERICA, : 

Respondent. : 

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate,

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 68). 

This action was referred to the undersigned Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule

8(b) of the Rules Governing Section 2255 Cases. It is now ready

for consideration. The record is adequate to dispose of this

matter; no evidentiary hearing is required. It is recommended

that Petitioner’s Motion to Vacate (Doc. 68) be denied, that this

action be dismissed, and that judgment be entered in favor of

Respondent, the United States of America, and against Petitioner

Joshua Uziel Hunter. It is further recommended that a finding be

made that Petitioner is not entitled to a certificate of

appealability and, therefore, is not entitled to appeal in forma

pauperis.

Hunter was indicted on February 28, 2008 for carjacking,

while in possession of a firearm, in violation of 18 U.S.C. §§

2119 and 924(c) (Doc. 1). On April 17, 2008, Petitioner entered

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On January 21, 2010, Petitioner requested an extension of time

(Doc. 72). That request was granted and Hunter was given until

February 26, 2010 to amend or supplement his Motion (Doc. 73). As of

this date, there have been no additional pleadings from Petitioner.

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into a plea agreement in which he admitted guilt on the charges

against him (Doc. 28). On October 22, 2008, U.S. District Judge

Steele sentenced Petitioner to 161 months on the two convictions

as well as five years of supervised release following his release

from prison, and an assessment of two hundred dollars (Doc. 64). 

Court records demonstrate that Hunter did not appeal either the

convictions or sentences.

Petitioner filed his Motion to Vacate, Set Aside, or Correct

Sentence under 28 U.S.C. § 2255 on October 22, 2009 (Doc. 68). 

Respondent filed a response on December 24, 2009 (Doc. 71). 

Hunter’s Motion states that he wishes to bring the following

claims to the Court’s attention: (1) ineffective assistance of

counsel; (2) possession of a firearm; and (3) carjacking (Doc.

68). This is all that Petitioner states in his one-page motion. 

Though given the opportunity to amend or supplement his Motion

(Doc. 73),1 Hunter has not done so.

The Court notes initially that the pleadings of pro se

litigants are to be liberally construed. Haines v. Kerner, 404

U.S. 519, 520 (1972). However, “[t]hese allegations, mere

conclusions, are not supported by a single allegation of fact.” 

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The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

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Williams v. U.S., 367 F.2d 143 (5th Cir. 1966).2 It is,

therefore, unnecessary to have a hearing and this action may be

dismissed. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.

1991) (“A petitioner is not entitled to an evidentiary hearing,

however, “when his claims are merely ‘conclusory allegations

unsupported by specifics' or ‘contentions that in the face of the

record are wholly incredible’”) (citations omitted). Petitioner

has been given the opportunity to provide information regarding

the claims asserted in his petition; his failure to prosecute

this action requires that it be dismissed. 

Hunter has asserted three claims in this petition. He has,

however, provided no factual allegations to support those

assertions. Therefore, it is recommended that the petition be

denied, that this action be dismissed, and that judgment be

entered in favor of Respondent, the United States of America, and

against Petitioner Joshua Uziel Hunter.

Furthermore, pursuant to Rule 11(a) of the Rules Governing §

2255 Cases, the undersigned recommends that a certificate of

appealability (hereinafter COA) in this case be denied. 28

U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue

or deny a certificate of appealability when it enters a final

order adverse to the applicant”). The habeas corpus statute

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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 COA. 28 U.S.C. § 2253(c)(1). A COA

may issue only where “the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. §

2243(c)(2). Where, as here, a habeas petition is being denied on

procedural grounds without reaching the merits of the underlying

constitutional claims, “a COA should issue [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 (2000);

see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the

controlling standard, a petitioner must ‘sho[w] 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.”’”). Inasmuch as Hunter has provided no

factual support for his assertions, a reasonable jurist could

not conclude either that this Court is in error in dismissing the

instant petition or that Hunter should be allowed to proceed

further, Slack, 529 U.S. at 484 (“Where a plain procedural bar is

present and the district court is correct to invoke it to dispose

of the case, a reasonable jurist could not conclude either that

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the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.”). 

CONCLUSION

The Magistrate Judge recommends that Petitioner’s Motion to

Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 be

denied (Doc. 68). It is further recommended that a finding be

made that Petitioner is not entitled to a certificate of

appealability and, therefore, is not entitled to appeal in forma

pauperis.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

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brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 13th day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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