Cox v. Bryant

Filing 14

ORDER ADOPTING 8 Report and Recommendation, GRANTING 11 Motion to Obtain Leave of Court for New Supplement Information filed by Joseph Cox, Jr. Petitioner' Motion to Obtain Leave of Court for Application for Writ of Habeas Corpus to Issue , construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2241, is DISMISSED WITHOUT PREJUDICE for failure to exhaust his administrative remedies. A certificate of appealability is DENIED. Signed by Honorable Stephen P. Friot on 8/25/2016. (llg)

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

JOSEPH COX, JR.,
Petitioner,
-vsJASON BRYANT, Warden
James Crabtree Correctional
Center,
Respondent.

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Case No. CIV-16-784-F

ORDER
On July 21, 2016, United States Magistrate Judge Suzanne Mitchell issued a
Report and Recommendation, recommending that petitioner’s Motion to Obtain Leave
of Court for Application for Writ of Habeas Corpus to Issue, construed as a petition
for a writ of habeas corpus under 28 U.S.C. § 2241, be dismissed without prejudice
for failure to exhaust his administrative remedies.
Petitioner has filed an objection to the Report and Recommendation. The court
is also in receipt of a Motion to Obtain Leave of Court for New Supplement
Information, filed of record after the issuance of the Report and Recommendation. In
conducting its de novo review pursuant to 28 U.S.C. § 636(b)(1), the court has
considered not only petitioner’s objection, but also petitioner’s motion. Therefore,
petitioner’s motion shall be granted.
Upon de novo review, the court concurs with the analysis of Magistrate Judge
Mitchell. The court specifically rejects petitioner’s futility argument. The court finds
that petitioner has failed to demonstrate that exhaustion of administrative remedies
would be futile. Consequently, the court finds that petitioner must go through the

administrative remedy process as a prerequisite to filing his § 2241 petition. The court
therefore accepts, adopts and affirms the Report and Recommendation in its entirety.
Petitioner must obtain a certificate of appealability to appeal this court’s
dismissal of his § 2241 petition. See, Montez v. McKinna, 208 F.3d 862, 867 (10th
Cir. 2000). A certificate of appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). This “requires an overview
of the claims in the habeas petition and a general assessment of their merits.” Id. at
336. Further, when the district court, as in this case, denies a habeas petition on
procedural grounds without reaching the applicant’s underlying constitutional claim,
a certificate of appealability should issue only when the applicant 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. See, Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Upon review of the record, the court finds that petitioner is not entitled to a
certificate of appealability.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Suzanne Mitchell (doc. no. 8) is ACCEPTED, ADOPTED and
AFFIRMED. Petitioner’s Motion to Obtain Leave of Court for New Supplement
Information (doc. no. 11) is GRANTED. Petitioner’s Motion to Obtain Leave of
Court for Application for Writ of Habeas Corpus to Issue, construed as a petition for
a writ of habeas corpus under 28 U.S.C. § 2241, is DISMISSED WITHOUT
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PREJUDICE for failure to exhaust his administrative remedies. A certificate of
appealability is DENIED. Judgment shall issue forthwith.
DATED August 25, 2016.

16-0784p001.wpd

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