Riley v. Bear

Filing 11

ORDER ADOPTING 9 Report and Recommendation; DISMISSING for lack of jurisdiction, as an unauthorized successive petition that is untimely, 1 Petition for a Writ of Habeas Corpus; DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 7/19/2016. (llg)

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

WAYNE RILEY,
Petitioner,
-vsCARL BEAR, Warden,
Respondent.

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Case No. CIV-16-0564-F

ORDER

Petitioner Wayne Riley, a state prisoner appearing pro se whose pleadings are
liberally construed, seeks habeas relief under 28 U.S.C. § 2254.
On June 27, 2016, Magistrate Judge Gary M. Purcell entered a Supplemental
Report and Recommendation (the Report). Doc. no. 9. The Report recommends the
petition be dismissed upon filing for lack of jurisdiction, as the magistrate judge
concluded that the petition is an unauthorized successive habeas petition over which
this court lacks jurisdiction. The Report further found that because the petition is
clearly time-barred, the petition should be dismissed rather than transferred to the
Tenth Circuit Court of Appeals for consideration as a successive petition.
Petitioner objects to the Report. Doc. no. 10. Petitioner objects to dismissal,
arguing the petition should be transferred to the Tenth Circuit Court of Appeals rather
than dismissed. Petitioner also makes other arguments, objecting, for example, to the

Report’s finding that his petition is time-barred and stating other objections going to
the merits of his petition.
As required by 28 U.S.C. §636(b)(1), the court has reviewed all objected to
matters de novo. Having concluded that review, the court finds that it agrees with the
Report and that no purpose would be served by stating any further analysis here.
Accordingly, plaintiff’s objections to the Report are DENIED. The Report and
Recommendation of the Magistrate Judge is ACCEPTED, ADOPTED and
AFFIRMED. In accordance with the Report, the petition for a writ of habeas corpus
is DISMISSED for lack of jurisdiction, as an unauthorized successive petition that
is untimely.
Movant 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.

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Petitioner has not made the requisite showing, and a certificate of appealability is
DENIED.
Dated this 19th day of July, 2016.

16-0564p002.wpd

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