Morgan v. United States of America
ORDER ADOPTING REPORT AND RECOMMENDATION for 7 Motion to Set Aside Judgment filed by David Brian Morgan, 8 Report and Recommendation, 2 Motion for Leave to Proceed in forma pauperis filed by David Brian Morgan. This matter is dismissed without prejudice. Signed by Honorable David L. Russell on 3/22/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID BRIAN MORGAN,
UNITED STATES OF AMERICA,
Case No. CIV-17-80-R
Before the Court is the Report and Recommendation of United States Magistrate
Judge Gary M. Purcell entered February 27, 2017. Doc. No. 8. No objection to the
Report and Recommendation has been filed nor has an extension of time in which to object
been sought or granted. Therefore, the Report and Recommendation of the Magistrate
Judge is ADOPTED in its entirety and this matter is DISMISSED WITHOUT
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).
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 22nd day of March, 2017.
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