IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOHN WILLIE MALONE, JR. )

AIS #292690, )

Petitioner, )

)

v. ) CIVIL ACTION NO. 14-00571-WS-N

)

KARLA JONES, )

Respondent. )

REPORT AND RECOMMENDATION

Petitioner, John Willie Malone, Jr., an Alabama prisoner proceeding pro se, 

has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 4).1 The 

Respondent, through the Office of the Attorney General of the State of Alabama, 

has timely filed an Answer (Doc. 7) to the petition, and Malone has timely filed a 

reply (Doc. 8) to the Answer. Malone’s habeas petition is now under submission and 

is ripe for disposition.

Under S.D. Ala. GenLR 72.2(b), the petition has been referred to the 

undersigned Magistrate Judge for entry of a recommendation as to the appropriate 

disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules 

Governing § 2254 Cases in the United States District Courts, and S.D. Ala. GenLR 

72(a)(2)(R). Upon consideration, and for the reasons stated herein, the undersigned

RECOMMENDS that Malone’s habeas petition (Doc. 4) be DENIED and that this 

action be DISMISSED with prejudice. The undersigned further 

 1 Malone initially filed his petition on December 15, 2014 (Doc. 1), but on an outdated form 

and was ordered to file a new petition on the Court’s current form. (See Doc. 3). Malone

timely complied with that order, resulting in the instant operative habeas petition (Doc. 4). 

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RECOMMENDS that Malone be found not entitled either to a Certificate of 

Appealability or to proceed in forma pauperis on appeal.

I. Background

Following a jury trial in the Circuit Court of Mobile County, Alabama, 

Malone was found guilty of one count of first-degree assault in violation of Ala. Code 

§ 13A-6-20 (Mobile Co. Circuit Ct. Case No. CC-12-3871). (Doc. 7-1 at 21, 196). On 

December 19, 2013, the circuit court sentenced Malone to twenty-five years in 

prison and assessed various fines and costs. (Id. at 214). Malone filed a Motion for 

a New Trial and a hearing was held on March 17, 2014. (Doc. 11). The trial court 

denied Malone’s motion. 

On July 11, 2014, the Alabama Court of Criminal Appeals affirmed the 

circuit court’s judgment on direct appeal in an unpublished memorandum decision. 

(Doc. 7-6). Malone filed a request for rehearing on July 18, 2014, which was 

overruled on July 25, 2014. (Doc. 7-7; Doc. 7-8). Thereafter, Malone filed a Petition 

for Writ of Certiorari (Doc. 7-9) that was denied on September 12, 2014. (Doc. 7-10).

On December 9, 2014 (the date Malone signed his initial petition) (see Doc. 1 

at 13),2 Malone initiated this action under § 2254 challenging his conviction.3 

 2 Under “the prison mailbox rule, ... ‘a pro se prisoner’s court filing is deemed filed on the 

date it is delivered to prison authorities for mailing.’ ” Daniels v. United States, 809 F.3d 

588, 589 (11th Cir. 2015) (per curiam) (quoting Williams v. McNeil, 557 F.3d 1287, 1290 n.2 

(11th Cir. 2009)). See also Rule 3(d) of the Rules Governing § 2254 Cases in the United 

States District Courts. Courts “assume, ‘[a]bsent evidence to the contrary, ... that a 

prisoner delivered a filing to prison authorities on the date that he signed it.’ ” Daniels, 

809 F.3d at 589 (quoting Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014) (per 

curiam)).

3 Because Malone challenges a conviction handed down by a state court within this judicial 

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II. Claim for Relief

The sole claim for relief in Malone’s operative habeas petition is that the trial 

court erred by denying his motion for new trial based on ineffective assistance of 

counsel in violation of the Sixth Amendment of the United States Constitution. 

More specifically, Malone asserts that his counsel should have called Sean 

Cunningham and Evette Coleman as witnesses at trial because their testimony 

would have contested the State’s version of the alleged crime. (Doc. 4 at 7). The 

Respondent does not assert any procedural bar to the petition (e.g. failure to 

exhaust, statute of limitations) but argues that Malone’s claim is due to be denied 

on the merits. (See Doc. 7).

III. Analysis

Because Malone’s habeas petition was filed after April 24, 1996, it is subject 

to application of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. 

L. No. 104-132, 110 Stat. 1214 (“AEDPA”). E.g., Pope v. Sec'y for Dep't of Corr., 680 

F.3d 1271, 1281 (11th Cir. 2012), cert. denied, 133 S. Ct. 1625 (2013). “Under 

AEDPA, if a petitioner's claims have been ‘adjudicated on the merits in State court,’

a federal court cannot grant habeas relief unless the state court’s adjudication of the 

claims (1) ‘was contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United States,’ 

or (2) ‘was based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.’ ” Hittson v. GDCP Warden, 759 

 

district, see 28 U.S.C. § 81(c), this Court has jurisdiction to entertain his habeas petition. 

See 28 U.S.C. § 2241(d).

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F.3d 1210, 1230 (11th Cir. 2014) (quoting 28 U.S.C. § 2254(d)), cert. denied, 135 S. 

Ct. 2126 (2015). “AEDPA erects a formidable barrier to federal habeas relief for 

prisoners whose claims have been adjudicated in state court. AEDPA requires a 

state prisoner to show that the state court’s ruling on the claim being presented in 

federal court was so lacking in justification that there was an error beyond any 

possibility for fairminded disagreement. If this standard is difficult to meet—and it 

is—that is because it was meant to be. [Federal courts] will not lightly conclude 

that a State’s criminal justice system has experienced the extreme malfunction for 

which federal habeas relief is the remedy.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013) 

(internal citations and quotations omitted). See also Woods v. Donald, -- U.S. --, 135 

S. Ct. 1372, 1376 (2015) (per curiam) (“AEDPA's standard is intentionally ‘ “ ‘ 

difficult to meet. ’ ” ’ ” (quoting White v. Woodall, 572 U.S. ––––, ––––, 134 S. Ct. 

1697, 1702, 188 L. Ed. 2d 698 (2014) (quoting Metrish v. Lancaster, 569 U.S. ––––, –

–––, 133 S. Ct. 1781, 1786, 185 L. Ed. 2d 988 (2013)))). The United States Supreme 

Court has

explained that “ ‘clearly established Federal law’ for purposes of § 

2254(d)(1) includes only the holdings, as opposed to the dicta, of this 

Court’s decisions.” White, 572 U.S., at ––––, 134 S. Ct., at 1702 (some 

internal quotation marks omitted). “And an ‘unreasonable application 

of’ those holdings must be objectively unreasonable, not merely wrong; 

even clear error will not suffice.” Id., at ––––, 134 S. Ct., at 1702 

(same). To satisfy this high bar, a habeas petitioner is required to 

“show that the state court's ruling on the claim being presented in 

federal court was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement.” Harrington v. Richter, 562 

U.S. 86, 103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

Adherence to these principles serves important interests of federalism 

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and comity. AEDPA’s requirements reflect a “presumption that state 

courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24, 

123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam). When reviewing 

state criminal convictions on collateral review, federal judges are 

required to afford state courts due respect by overturning their 

decisions only when there could be no reasonable dispute that they 

were wrong. Federal habeas review thus exists as “a guard against 

extreme malfunctions in the state criminal justice systems, not a 

substitute for ordinary error correction through appeal.” Harrington, 

supra, at 102–103, 131 S. Ct. 770 (internal quotation marks omitted).

Woods, 135 S. Ct. at 1376.

Finally, “AEDPA instructs that, when a federal habeas petitioner 

challenges the factual basis for a prior state-court decision rejecting a 

claim, the federal court may overturn the state court's decision only if 

it was ‘based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceeding.’ ” Burt v. Titlow,

–––U.S. ––––, 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013) (quoting 28 

U.S.C. § 2254(d)(2)). In such cases, “[t]he prisoner bears the burden of 

rebutting the state court's factual findings ‘by clear and convincing 

evidence.’ ” Id. (quoting 28 U.S.C. § 2254(e)(1)). Like the “unreasonable 

application” standard in § 2254(d)(1), “a state-court factual 

determination is not unreasonable merely because the federal habeas 

court would have reached a different conclusion in the first instance.” 

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175 L. Ed. 2d 738 

(2010). “[E]ven if reasonable minds reviewing the record might 

disagree about the finding in question ... that does not suffice to 

supersede the [state] court's determination.” Id. (alterations and 

quotation marks omitted).

Hittson, 759 F.3d at 1230. 

“As a rule, [federal courts] review ‘the highest state court decision reaching 

the merits of a habeas petitioner’s claim.’ ” Holland v. Florida, 775 F.3d 1294, 1308 

(11th Cir. 2014) (quoting Hittson, 759 F.3d at 1231), cert. denied, 136 S. Ct. 536 

(2015). Here, that decision is the Alabama Court of Criminal Appeals’ July 11, 

2014, memorandum opinion affirming the trial court’s denial of Malone’s motion for 

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a new trial. Under this framework, the undersigned will address Malone’s claim for 

habeas relief.

A. Ineffective Assistance of Counsel

Malone’s sole claim for relief is one of ineffective assistance of counsel based 

on his counsel’s failure to call two additional witnesses, Sean Cunningham and 

Evette Coleman, at trial. (Docs. 4 and 8, generally). Malone argues that the 

testimony of these witnesses would have rebutted the testimony of Demetrius 

Woodard, the victim, and sole witness for the prosecution. (Id.)

The Sixth Amendment gives criminal defendants the right to effective 

assistance of counsel. U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 

668 (1984). Normally, “[t]o establish an ineffective assistance of counsel claim, a 

defendant must show that (1) ‘counsel's representation fell below an objective 

standard of reasonableness’ and (2) that such failure prejudiced him in that ‘there is 

a reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different.’ ” United States v. Pease, 240 F.3d 938, 

941 (11th Cir. 2001) (per curiam) (quoting Strickland, 466 U.S. at 687-88, 694).

The Alabama Court of Criminal Appeals summarized the facts before the 

trial court on Malone’s Motion for a New Trial as follows:

Malone’s sole issue on appeal is that the trial court erred by denying 

his motion for a new trial. In that motion, Malone argued that trial 

counsel was ineffective under Strickland v. Washington, 466 U.S. 

668 (1984). Malone contended that trial counsel failed to call two 

witnesses who, he said, would have offered testimony refuting 

Woodard's version of the incident. Specifically, Malone asserted that 

Sean Cunningham, who was present at the time of the shooting and 

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who witnessed the altercation, would have testified that Woodard was 

the initial aggressor and that Woodard was the one who initially had 

the gun. Malone also asserted that Evette Coleman, if called as a 

witness, would have testified that she heard the argument between 

Malone and Woodard and that, before any shots were fired, Malone 

repeatedly tried to persuade Woodard to leave the premises. 

At the hearing on the motion for a new trial, Cunningham testified 

that he witnessed the altercation between Malone and Woodard. 

Cunningham's testimony was similar to Woodard's as to the events 

leading up the verbal altercation. However, Cunningham stated that, 

as the men were arguing, Woodard pressed his finger into Malone's 

chest, took three steps back, reached into his back pocket, and pulled 

out what looked like a gun. Next, according to Cunningham, Mr. 

Malone took two or three steps toward Mr. Woodard. They started a 

slight altercation. I heard shots and I hit the ground." (S.R. 9.) 

Cunningham stated that he fled the scene because he had been shot 

eight times in the past. On cross-examination, Cunningham admitted 

that he did not call the police that day to report the shooting. 

Cunningham also admitted that, in 2012, he pleaded guilty to

possession of a forged instrument. 

Evette Coleman testified that she was Malone's neighbor at the time of 

the shooting. Coleman stated that she was in her house that day and 

was able to hear the argument between Malone and Woodard. 

According to Coleman, Malone said, "'Go ahead on, go ahead on," to 

which Woodard replied, "'F the children.'" (S.R. 13.) Coleman stated 

that he then heard gunshots. However, Coleman did not see any of the 

altercation and did not know who fired the shots. 

Both witnesses testified that they were available and willing to testify 

at Malone's trial. Coleman was actually present at the trial but 

Cunningham stated that Malone's attorney never told him the date of 

the trial. According to Malone, trial counsel was deficient for failing to 

call Coleman and Cunningham as witnesses. Malone argued that the 

jury only heard Woodard's version of the events and, had it heard 

Malone's version, there is a reasonable probability that he would have 

been acquitted. Therefore, he argued, he is entitled to a new trial. 

(Doc. 7-6 at 3-4).

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In upholding the trial court’s ruling, the Court of Criminal Appeals 

addressed the applicability of Strickland and stated the following:

We have reviewed the record on appeal with these principles in mind and do

not find that trial counsel's performance was deficient. It is undisputed that 

Woodard was the only witness who testified regarding the actual shooting. 

In reviewing the record, it is apparent that defense counsel's strategy was to 

discredit Woodard so that the jury would not believe his testimony. 

During his cross-examination of Woodard, defense counsel elicited testimony 

that Woodard had been convicted of selling forged DVDs, a crime involving 

dishonesty. Defense counsel also introduced photographs depicting Woodard 

holding guns and pictures suggesting that Woodard was a member of a gang. 

These photographs contradicted Woodard's prior testimony that he did not 

own or carry a gun. Also, as noted earlier, defense counsel called Brittany 

Whit who testified that Woodard was violent towards her during their 

relationship. By eliciting this testimony, defense counsel painted a picture of 

Woodard as a dishonest and violent man who was not worthy of belief. 

Additionally, defense counsel had valid reasons for not calling Cunningham 

and Coleman as witnesses. As noted, Coleman did not actually witness the 

shooting. Therefore, her testimony would not have contradicted Woodard's 

version of the events. Further, Cunningham admitted that he had been 

convicted of possessing a forged instrument, a felony that involved 

dishonesty. It would not have been unreasonable for defense counsel to 

decide, for tactical reasons, not to call these witnesses and, instead, focus on 

discrediting Woodard. In fact, the prosecutor made the following comment 

during his closing argument: "No bones about it, this whole case relies on 

[Woodard]. If you guys believe him, find [Malone] guilty. If you don't believe 

him, cut [Malone] loose." (R. 143.) It appears that defense counsel

understood that and attempted to persuade the jury that Woodard was not 

trustworthy and that his testimony could not be believed. Finally, we note 

that Malone was indicted for attempted murder but was convicted of the 

lesser-included offense of first-degree assault. Therefore, defense counsel's 

strategy was not completely unsuccessful.

[...]

Based on the evidence presented at the hearing on the motion for a new trial, 

Malone failed to prove that defense counsel's decision not to call Cunningham 

and Coleman was not the product of a sound trial strategy. Nothing in the 

record suggests that the trial court's ruling was erroneous or otherwise 

contrary to the law. Accordingly, the trial court did not abuse its discretion by 

denying the motion for a new trial. 

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(Doc. 7-6 at 6-7).

Malone raises no challenge to the Court of Criminal Appeals’ factual 

determinations, which this Court must presume correct in the absence of “clear and 

convincing evidence” to the contrary. See Hunter, 395 F.3d at 1200 (“Under [28 

U.S.C. § 2254(e)(1)], state court factual determinations are presumed correct and a 

federal habeas petitioner is stuck with them unless he can rebut their presumed 

correctness with clear and convincing evidence to the contrary.”). Further, in the 

present petition, Malone fails to provide any substantive discussion of how the 

Court of Criminal Appeals unreasonably applied either the facts or clearly 

established United States Supreme Court precedent to his claim. Instead, in his 

reply to Respondent’s answer, Malone sets forth the same arguments made to the 

trial court and Court of Criminal Appeals. Namely, Malone states:

It was not a reasonable trial strategy to not call the only two other available 

witnesses to the incident, to testify, when their testimony was favorable to 

the defense, rebutted the States only incriminating witness, and provided a 

legal defense for the Defendant. By not calling these witnesses, the 

Defendant was virtually defenseless before the jury. Justice is fairness. It 

wasn’t nothing or it isn’t nothing, the state has offered to show that this 

omission was any sort of trial strategy.

(Doc. 11 at 3). In making this argument, Malone fails to address the reasoning of 

the Appeals Court in applying Strickland (the same case under which Malone 

argues), i.e. that from an objective standpoint, there were valid strategic reasons 

why these two uncalled witnesses were not called. Specifically, because one witness 

did not actually see the altercation between Malone and Woodard (the victim) and 

because the other was a convicted felon of a crime that involved dishonesty. 

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On federal habeas review, the Court’s only concern is whether state courts 

reasonably applied “clearly established Federal law, as determined by the 

Supreme Court of the United States...” 28 U.S.C. § 2254(d)(1) (emphasis 

added). The undersigned agrees with the Court of Criminal Appeals that Malone’s 

attorney’s decision not to call Cunningham and/or Coleman as witnesses was an 

objectively reasonable tactical strategy and finds that he was not deficient in 

representing Petitioner. See Caderno v. U.S., 256 F.3d 1213, 1217 (11th Cir. 2001), 

cert. denied, 534 U.S. 1167 (2002) ("There is a strong presumption that counsel's 

performance was reasonable and adequate, with great deference shown to choices 

dictated by reasonable trial strategy"). As such, the decision of the Alabama Court 

of Criminal Appeals was neither incorrect nor unreasonable in its application of 

federal law and, therefore, Malone is not entitled to habeas relief. As a result, the 

undersigned RECOMMENDS that Malone’s habeas petition (Doc. 4) be DENIED

and this action DISMISSED with prejudice.4

B. Certificate of Appealability

In actions, such as this one, brought under § 2254, a “district court must 

issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rule 11(a) of the Rules Governing Section 2254 Cases in the United 

States District Courts. “A certificate of appealability may issue ‘only if the 

applicant has made a substantial showing of the denial of a constitutional right.’ ” 

Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 

 4 In accordance with Rule 8(a) of the Rules Governing Section 2254 Cases, the undersigned, 

having considered the Respondent’ answer and the records of the state court proceedings, 

finds that an evidentiary hearing is not warranted before dismissing Malone’s petition.

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U.S.C. § 2253(c)(2)). However, “a COA does not require a showing that the appeal 

will succeed.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

Where, as here, the district court “has rejected the constitutional claims on 

the merits, the showing required to satisfy § 2253(c) is straightforward: The 

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). See also Miller-El, 537 U.S. at 336 (“Under the controlling 

standard, a petitioner must show 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.” (citations omitted and punctuation modified)).). “A prisoner 

seeking a COA must prove something more than the absence of frivolity or the 

existence of mere good faith on his or her part.” Miller-El, 537 U.S. at 338 

(quotations omitted). Upon consideration, the undersigned RECOMMENDS that a 

certificate of appealability in this action be DENIED. Malone has not made a 

substantial showing of the denial of a constitutional right, and he has presented no 

constitutional claim for which “reasonable jurists would find [this] court’s 

assessment...debatable or wrong.” Slack, 529 U.S. at 484.

Rule 11(a) further provides: “Before entering the final order, the court may 

direct the parties to submit arguments on whether a certificate should issue.” If 

there is an objection to this recommendation by the petitioner, he may bring this 

argument to the attention of the district judge in the objections permitted to this 

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report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WSC, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation 

adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011)5; Griffin v. DeRosa, No. 

3:10cv342/RV/MD, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for 

same procedure), report & recommendation adopted sub nom. Griffin v. 

Butterworth, 2010 W: 3943699 (N.D. Oct. 5, 2010).6

C. Appeal In Forma Pauperis

“An appeal may not be taken in forma pauperis if the trial court certifies in 

writing that it is not taken in good faith.” 28 U.S.C.A. § 1915(a)(3). A district 

court’s finding “that an appeal would not be in good faith because no certificate of 

appealability had been issued . . . is not enough to explain why the appeal on the 

merits would not be in good faith, because the standard governing the issuance of a 

certificate of appealability is not the same as the standard for determining whether 

an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is 

in good faith, a court need only find that a reasonable person could suppose that the 

appeal has some merit.” Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). 

See also Weaver v. Patterson, Civ. A. No. 11-00152-WS-N, 2012 WL 2568218, at *7 

(S.D. Ala. June 19, 2012) (Nelson, M.J.), report and recommendation adopted, Civ. 

 5 It should be noted that in that proceeding, the Eleventh Circuit (Judge Hull) also denied 

the petitioner’s motion for certificate of appealability on October 11, 2011. (See Doc. 14 in 

CA-11-0165-WS-C.).

6 Should the Court adopt this recommendation and deny a certificate of appealability, the 

petitioner “may not appeal the denial but may seek a certificate from the court of appeals 

under Federal Rule of Appellate Procedure 22.” Rule 11(a) of the Rules Governing § 2254 

Cases in the United States District Courts.

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A. No. 11-00152-WS-N, 2012 WL 2568093 (S.D. Ala. July 3, 2012) (Steele, C.J.) (“An 

appeal may not be taken in forma pauperis if the trial court certifies in writing that 

the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); see Fed. R. App. P. 

24(a)(3)(A); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that 

‘good faith’ is ‘an objective concept’ and that ‘not taken in good faith’ is ‘a synonym 

for frivolous’); DeSantis v. United Techs, Corp., 15 F. Supp. 2d 1285, 1288–89 (M.D. 

Fla. 1998) (stating that good faith ‘must be judged by an objective, not a subjective, 

standard’ and that an appellant ‘demonstrates good faith when he seeks appellate 

review of any issue that is not frivolous’). An appeal filed in forma pauperis is 

frivolous if ‘it appears that the Plaintiff has little to no chance of success,’ meaning 

that the ‘factual allegations are clearly baseless or that the legal theories are 

indisputably meritless.’ Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).”). But 

see, e.g., United States v. McCray, No. 4:07CR20-RH, 2012 WL 1155471, at *2 (N.D. 

Fla. Apr. 5, 2012) (“Because the defendant has not obtained—and is not entitled 

to—a certificate of appealability, any appeal by the defendant will not be taken in 

good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any 

appeal will not be taken in good faith and that the defendant is not otherwise 

entitled to proceed in forma pauperis on appeal.”).

Considering the foregoing analysis, the undersigned RECOMMENDS the 

Court certify that any appeal by Malone in this action would be without merit and 

therefore not taken in good faith and, accordingly, find that Malone is not entitled 

to appeal in forma pauperis.

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IV. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that 

Malone’s habeas petition (Doc. 4) be DENIED, that this action be DISMISSED 

with prejudice, that judgment be entered in favor of the Respondent, and that the 

Court find Malone is not entitled to either a certificate of appealability or to appeal 

in forma pauperis.

V. 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 

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recommendation where the disputed determination is found. An objection that 

merely incorporates by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this the 27th day of October, 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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