Cleveland v. Havanek et al

Filing 47

ORDER ADOPTING 24 Report and Recommendation, DENYING 1 Petition Under 28 USC §2254 for Writ of Habeas Corpus by a Person in State Custody, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 4/1/13. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER CLEVELAND,
Petitioner,
-vsKAMERRON HAVANEK,
Warden,
Respondent.

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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 former United States Magistrate Judge
Robert E. Bacharach,1 in accordance with 28 U.S.C. § 636. Magistrate Judge
Bacharach issued a Report and Recommendation on September 21, 2012 (doc. no. 24),
recommending that petitioner’s habeas petition be denied.
Petitioner has filed a specific written objection to the Report and
Recommendation. See, doc. no. 43. With his objection, petitioner has 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 prior to issuance of
the Report and Recommendation. When reviewing a written objection 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

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Judge Robert E. Bacharach has recently been appointed to serve as a Circuit Judge on the
Tenth Circuit Court of Appeals.

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).2
Exercising its discretion, the court declines to consider the new evidence. Petitioner
has not demonstrated that he could not, with due diligence, have obtained the
affidavits and transcript excerpts prior to the issuance of the Report and
Recommendation. Although petitioner is in prison and has to rely on others to assist
in obtaining evidence for him, there has been no showing that there was not enough
time to gather this evidence or that petitioner was denied the opportunity to obtain the
evidence prior to a ruling on his habeas petition. It was only after receiving the Report
and Recommendation which recommended a denial of the habeas petition that
petitioner determined that he needed the new evidence. Because the new evidence
was available to petitioner at the time he filed his submissions relating to the habeas
petition, the court declines to consider the new evidence in ruling on petitioner’s
objection.
In accordance with 28 U.S.C. § 636(b)(1), the court has conducted a de novo
review of petitioner’s objection without the new evidence. Having done so, the court
concurs with the analysis in the Report and Recommendation relating to each of
petitioner’s five grounds for relief. The court finds petitioner’s arguments to be
without merit. The court agrees that petitioner’s habeas petition should be denied.
Therefore, the court accepts, adopts and affirms the Report and Recommendation.
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

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

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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 thus finds that a
certificate of appealability should be denied.
Accordingly, the Report and Recommendation issued on September 21, 2012
(doc. no. 24) is ACCEPTED, ADOPTED and AFFIRMED. Petitioner’s Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody is
DENIED. A certificate of appealability is DENIED.
DATED April 1, 2013.

12-0086p007.wpd

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