Mays v. Scarantino

Filing 6

ORDER adopting Report and Recommendations re 5 Report and Recommendation.; denying 2 Motion for Leave to Proceed in forma pauperis. Signed by Honorable David L. Russell on 12/08/2016. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
VERDELL MAYS,

)
)
Petitioner,
)
)
v.
)
)
THOMAS SCARANTINO, Warden, )
)
Respondent.
)

Case No. CIV-16-1289-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Gary M. Purcell entered November 14, 2016. Doc. No. 5. Petitioner was advised
that unless he paid the full filing fee on or before December 5, 2016, this matter would be
dismissed without prejudice. No objection to the Report and Recommendation has been
filed nor has an extension of time in which to object been sought or granted or the filing
fee paid. Therefore, the Report and Recommendation of the Magistrate Judge is
ADOPTED in its entirety and this matter is DISMISSED WITHOUT PREJUDICE.
Further, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the
United States District Courts, the undersigned denies Petitioner a Certificate of
Appealability. Where a habeas petition is denied on procedural grounds, Petitioner is
entitled to a COA only if he/she demonstrates 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.” Stack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
1

When a habeas petition is denied on the merits, Petitioner is entitled to a COA only if
he/she demonstrates “that jurists of reason could disagree with the district court’s
resolution of his/her 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, 123 S.Ct. 1029, 154 L.Ed.2d 931, 944 (2003) (citing Slack v. McDaniel,
supra). Petitioner has not made either showing and is therefore not entitled to a COA.
IT IS SO ORDERED this 8th day of December, 2016.

2