Rubio v. United States of America

Filing 9

ORDER ADOPTING 7 Report and Recommendation; DISMISSING upon filing, w/o prejudice, 1 Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability. Signed by Honorable Stephen P. Friot on 4/27/12. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER LEE RUBIO,
Petitioner,
vs.
H.A. LEDEZMA, Warden,
Respondent.

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Case No. CIV-12-0207-F

ORDER
Petitioner, a federal prisoner appearing pro se, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (Doc. no. 1.) On January April 17, 2012, Magistrate
Judge Doyle W. Argo filed a Report and Recommendation (doc. no. 7),
recommending that the petition be dismissed upon filing. Petitioner filed a timely
objection to the Report and Recommendation, and the matter is reviewed de novo.
Upon review, the court concludes that it agrees with the Magistrate Judge and
that no purpose would be served by any further analysis here. The court hereby
ADOPTS, ACCEPTS and AFFIRMS the Report of the Magistrate Judge. (Doc. no.
7). The petition is DISMISSED upon filing, without prejudice.
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 petitioner 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. The
petitioner has not made the requisite showing and a certificate of appealability is
DENIED.
Dated this 27th day of April, 2012.

12-0207p001.wpd

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