Hyatt v. Rudek et al

Filing 27

ORDER ADOPTING 22 Supplemental Report and Recommendation, DENYING 1 Petition for a Writ of Habeas Corpus, DENYING Certificate of Appealability. Signed by Honorable Stephen P. Friot on 8/13/12. (llg) Modified on 8/13/2012 (llg).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TYWAN HYATT,
Petitioner,
vs.
JAMES RUDEK, WARDEN,
Respondent.

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Case No. CIV-10-1396-F

ORDER
Petitioner Tywan Hyatt brings this action under 28 U.S.C. § 2254, challenging
his state court convictions on various federal constitutional grounds. Petitioner
appears pro se and his pleadings are liberally construed.
The court has previously entered an order denying habeas relief as to ground
five. Order, doc. no. 15. The Supplemental Report and Recommendation now before
the court recommends denying relief as to grounds one through four.

The

Supplemental Report and Recommendation was submitted by Magistrate Judge
Gary M. Purcell on July 5, 2012. Doc. no. 22.
Petitioner filed objections to the magistrate judge’s recommended findings and
conclusions as stated in the Supplemental Report and Recommendation. Objections,
doc. no. 23. The court reviews all objected to matters de novo.
Upon review, and having considered defendant’s objections, the court concurs
with the magistrate judge’s determinations and concludes that it would not be useful
to cite any additional arguments or authorities here.
Accordingly, the Supplemental Report and Recommendation of Magistrate
Judge Purcell is ACCEPTED, ADOPTED and AFFIRMED in its entirety. Based
on the court’s previous denial of relief with respect to ground five, and in conjunction

with the instant order denying relief with respect to grounds one through four, the
petition for a writ of habeas corpus is DENIED.
Petitioner is entitled to a certificate of appealability only upon making a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
This standard is satisfied by demonstrating that the issues movant seeks to raise are
deserving of further proceedings, debatable among jurists of reasons, or subject to
different resolution on appeal. See, Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(“[W]e give the language found in §2253(c) the meaning ascribed it in [Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)], with due note for the substitution of the word
‘constitutional.’”). “Where a district court has rejected the constitutional claims on
the merits,...[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id. When
a prisoner’s habeas petition is dismissed on procedural grounds without reaching the
merits of the prisoner’s claims, “a COA should issue when the prisoner shows, at
least, 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.” Id.
Petitioner has not made the requisite showing; a certificate of appealability is
DENIED.
Dated this 13th day of August, 2012.

10-1396p004.wpd

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