Jackson v. Martin

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION for 9 Report and Recommendation,, 7 Motion to Dismiss filed by Jimmy Martin. Petition is dismissed without prejudice. Signed by Honorable David L. Russell on 11/13/17. (jw)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA RICHARD JERREL JACKSON, Petitioner, v. JIMMY MARTIN, NFCC Warden, Respondent. ) ) ) ) ) ) ) ) ) Case No. CIV-17-839-R ORDER Before the Court is the Report and Recommendation of United States Magistrate Judge Bernard M. Jones entered October 18, 2017. Doc. No. 9. 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. § 2254 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 1 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 13th day of November, 2017. 2

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