Brantley v. Miller
ORDER ADOPTING 10 Report and Recommendation, DISMISSING 1 Petition for a Writ of Habeas Corpus for lack of jurisdiction, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 2/4/14. (llg)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EDWARD EVANS, Acting Director,
Case No. CIV-13-1352-F
Petitioner, a state prisoner appearing pro se and in forma pauperis whose
pleadings are liberally construed, brings this action seeking habeas relief under 28
U.S.C. § 2254.
Magistrate Judge Gary M. Purcell entered his Report and Recommendation in
this matter on January 16, 2014 (the Report). Doc. no. 10. The Report recommends
that the petition be dismissed for lack of jurisdiction, as a second or successive
petition for which petitioner has not obtained prior authorization from the Tenth
Circuit Court of Appeals. Petitioner objected to the magistrate judge’s recommended
findings and conclusions. Doc. no. 11. Having conducted de novo review, and having
fully considered petitioner’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 Report and Recommendation of Magistrate Judge Purcell is
ACCEPTED, ADOPTED and AFFIRMED. The petition for a writ of habeas corpus
is DISMISSED for lack of jurisdiction.
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
Dated this 4th day of February, 2014.
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