Cleveland v. Martin

Filing 28

ORDER ADOPTING 24 Report and Recommendation, DENYING 1 Petition for a Writ of Habeas Corpus, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 9/8/2016. (llg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER CLEVELAND,
Petitioner,
-vsTOMMY SHARP, Warden,

Respondent.

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Case No. CIV-13-1281-F

ORDER
On July 28, 2016, United States Magistrate Judge Bernard M. Jones issued a
Report and Recommendation, recommending that petitioner, Christopher Cleveland’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the
constitutionality of his state court conviction in Case No. CF-2009-605, District Court
of Oklahoma County, State of Oklahoma, be denied.
Petitioner has objected to the Report and Recommendation. Pursuant to 28
U.S.C. § 636(b)(1), the court has conducted a de novo review of the matter, and
having done so, the court concurs with the analysis of Magistrate Judge Jones with
respect to petitioner’s alleged grounds of habeas corpus relief. The court finds
petitioner’s objections to be without merit. Petitioner’s request for an evidentiary
hearing is denied as such hearing is not warranted. Petitioner’s alleged grounds for
habeas relief are resolvable on the basis of the existing record. Hooks v. Workman,
606 F.3d 715, 731 (10th Cir. 2010). The court accepts, adopts and affirms the Report
and Recommendation in its entirety.
Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, the court must issue or deny a certificate of appealability when
it enters a final order adverse to petitioner. 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 petitioner 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 petitioner’s habeas petition is denied on
procedural grounds without reaching the merits of the petitioner’s claims, “a COA
should issue when the [petitioner] 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 Bernard M. Jones on July 28, 2016 is ACCEPTED, ADOPTED
and AFFIRMED. Petitioner’s petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is DENIED. A certificate of appealability is DENIED.
DATED September 8, 2016.

13-1281p002.wpd

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