Ferrell v. Antonelli

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION for 17 Report and Recommendation, the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is DISMISSED WITHOUT PREJUDICE, as more fully set out. Signed by Honorable David L. Russell on 7/11/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
KENNETH FERRELL,
Petitioner,
v.
FNU ANTONELLI, Warden,
Respondent.

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Case No. CIV-17-132-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Suzanne Mitchell entered June 14, 2017. Doc. No. 17. 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 the Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 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).
When a habeas petition is denied on the merits, Petitioner is entitled to a COA only if
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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 11th day of July, 2017.

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