Cleveland v. Havanek et al

Filing 27

ORDER ADOPTING 24 Report and Recommendation, DENYING 26 Motion for Leave to Supplement Petition for Writ of Habeas Corpus filed by Christopher Cleveland, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 11/8/12. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

CHRISTOPHER CLEVELAND,
Plaintiff,
-vsKAMERRON HAVANEK,
Warden,
Defendant.

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Case No. CIV-12-86-F

ORDER
This 28 U.S.C. § 2254 action for habeas corpus relief, brought by a state
prisoner proceeding pro se, was referred to United States Magistrate Judge Robert E.
Bacharach in accordance with 28 U.S.C. § 636. Magistrate Judge Bacharach issued
a Report and Recommendation on September 21, 2012, wherein he recommended that
petitioner’s habeas petition be denied. Magistrate Judge Bacharach advised petitioner
that he must file an objection with the court clerk by October 8, 2012 and that failure
to timely object would foreclose appellate review of the suggested ruling.
Petitioner has not filed a specific written objection to the Report and
Recommendation. Instead, on October 9, 2012, petitioner filed three affidavits and
excerpts of transcript from jury trial proceedings held August 25, 2008 through
September 2, 2008. None of this evidence was presented to Magistrate Judge
Bacharach. When reviewing written objections to a Report and Recommendation,
section 636(b)(1) provides that “[t]he [district court] judge may . . . receive further
evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C.
§ 636(b)(1). The Tenth Circuit has stated that “[t]he decision whether to accept

further evidence after the magistrate judge’s recommendation is within the district
court judge’s discretion.” Gonzales v. Qwest Communications Corp., 160 Fed.Appx.
688, 2005 WL 3388539, *1 (10th Cir. Dec. 13, 2005).1 Exercising its discretion, the
court declines to consider the new evidence. Petitioner has not shown that he was not
able with due diligence to obtain the affidavits and transcript excerpts prior to the
issuance of Magistrate Judge Bacharach’s Report and Recommendation. It appears
to the court that this evidence was available to petitioner at the time he filed his
submissions relating to the habeas petition. As the court declines to consider the new
evidence and petitioner has filed no specific written objection to the Report and
Recommendation, the court accepts, adopts and affirms the Report and
Recommendation in its entirety.
On October 15, 2012, petitioner filed a motion for leave to supplement his
habeas petition. Respondent has not responded to petitioner’s motion within the time
prescribed by LCvR 7.1(g). Upon review, however, the court concludes that a
response is not required. A petitioner may amend or supplement his § 2254 habeas
petition “as provided in the rules of procedure applicable to civil actions.” 28 U.S.C.
§ 2242, see also, Rule 12 of the Rules Governing Section 2254 Cases in the United
States District Courts. The court need not decide whether petitioner’s motion is one
to supplement the petition or one to amend the petition. See, Rule 15(d), Fed. R. Civ.
P. (“On motion and reasonable notice, the court may, on just terms, permit a party to
serve a supplemental pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.”) (emphasis added). As
a general matter, “the standard used by courts in deciding to grant or deny leave to
supplement is the same standard used in deciding whether to grant or deny leave to

1

Unpublished decision cited as persuasive under 10th Cir. 32.1(A).

2

amend.” Fowler v. Hodge, 94 Fed. Appx. 710, 2004 WL 618070, *4 (10th Cir. March
30, 2004) (quotation omitted).2
Under Rule 15(a)(2), Fed. R. Civ. P., “[t]he court should freely give leave [to
amend] when justice so requires.” See, Rule 15(a)(2), Fed. R. Civ. P. However, leave
to amend may be denied on “a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.” Duncan v. Manager,
Dept. of Safety, City and County of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)
(quotation omitted). In the Tenth Circuit, untimeliness alone is an adequate reason to
refuse leave to amend. Id.; U.S. v. Burbage, 280 Fed. Appx. 777, 783, 2008 WL
23322137, *5 (10th Cir. June 9, 2008).3
In this case, the court concludes that petitioner’s motion is untimely. According
to the materials submitted by petitioner, the Oklahoma Court of Criminal Appeals
declined jurisdiction and dismissed petitioner’s request for extraordinary relief on
May 11, 2012. At the time of the appellate decision, petitioner knew his § 2254
habeas petition was fully briefed and awaiting decision by Magistrate Judge
Bacharach. As of August 29, 2012, petitioner also knew that Magistrate Judge
Bacharach was reviewing the matter because he entered an order advising the parties
that he was considering the possibility of giving judicial notice to a document and
sought the parties’ objections if any by September 13, 2012. Petitioner clearly had
sufficient time before Magistrate Judge Bacharach issued a Report and
Recommendation on the § 2254 habeas petition to file his motion seeking to amend
or supplement his petition to add his claims. Moreover, petitioner has not offered any

2

Unpublished decision cited as persuasive under 10th Cir. 32.1(A).

3

Unpublished decision cited as persuasive under 10th Cir. 32.1(A).

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reason for his delay. The court therefore concludes that petitioner’s motion should be
denied.
An appeal may not be taken from a “final order in a habeas corpus proceeding
in which the detention complained of arises out of process issued by a State court”
unless the petitioner first obtains a certificate of appealability.

28 U.S.C.

§ 2253(c)(1)(A). 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 reason, 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. The court therefore concludes
that a certificate of appealability should be denied.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Robert E. Bacharach (doc. no. 24) is ACCEPTED, ADOPTED and
AFFIRMED. Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas
4

Corpus by a Person in State Custody is DENIED. Petitioner’s Motion for Leave to
Supplement Petition for Writ of Habeas Corpus (doc. no. 26) is DENIED. A
certificate of appealability is DENIED.
DATED November 8, 2012.

12-0086p001.wpd

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