Daniel v. Dowling

Filing 15

ORDER ADOPTING 13 Report and Recommendation, DENYING 1 Petitioner's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 1/2/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MANUEL DANIEL, JR.,
Petitioner,
-vsJANET DOWLING,
Respondent.

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Case No. CIV-17-120-F

ORDER
On November 27, 2017, United States Magistrate Judge Shon T. Erwin issued
a Report and Recommendation, wherein he recommended the court deny petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Presently before the court is petitioner’s pro se objection to the Report and
Recommendation.

In accordance with 28 U.S.C. § 636(b)(1), the court has

conducted a de novo review of the matter. Having done so, the court concurs with
the analysis of Magistrate Judge Erwin. The court finds no purpose to repeat that
analysis here. Therefore, the court accepts, adopts and affirms the Report and
Recommendation in its entirety.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts requires the court to issue or deny a certificate of appealability when
it enters a final order adverse to the petitioner. A court may issue a certificate of
appealability “only if the [petitioner] 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 claim[] or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)). The court incorporates the deferential standard of 28 U.S.C. § 2254(d)
into its consideration of a certificate of appealability. See, Dockins v. Hines, 374
F.3d 935, 938 (10th Cir. 2004).
Having considered the record in this case, the court concludes that petitioner
is not entitled to a certificate of appealability.

Therefore, the court denies a

certificate of appealability.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Shon T. Erwin is ACCEPTED, ADOPTED and AFFIRMED.
Petitioner’s Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a
Person in State Custody (doc. no. 1) is DENIED. A certificate of appealability is
also DENIED. Judgment shall issue forthwith.
IT IS SO ORDERED this 2nd day of January, 2018.

17-0120p001.docx

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