Kincaid v Bear

Filing 12

ORDER ADOPTING 9 Report and Recommendation, DENYING 11 Motion to Appoint Counsel filed by Roger Frank Kincaid. Petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254 is summarily DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. A certificate of appealability is DENIED.. Signed by Honorable Stephen P. Friot on 11/17/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ROGER FRANK KINCAID,
Petitioner,
-vsCARL BEAR, Warden,
Respondent.

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Case No. CIV-17-1117-F

ORDER
On November 8, 2017, United States Magistrate Judge Bernard M. Jones
issued a Report and Recommendation, recommending petitioner’s petition for a writ
of habeas corpus under 28 U.S.C. §2254 be summarily dismissed. Magistrate Judge
Jones found that the court lacks jurisdiction to entertain petitioner’s habeas petition
because it is a second or successive petition filed without authorization from the
United States Court of Appeals for the Tenth Circuit. He also determined that it was
not in the interest of justice for the court to transfer the habeas petition to the Tenth
Circuit for authorization, pursuant to 28 U.S.C. § 1631, because (1) petitioner
acknowledged the authorization requirement in his petition; (2) he failed to
demonstrate satisfaction of the criteria of 28 U.S.C. § 2244(b)(2); and (3) he failed
to demonstrate that his habeas claims are likely to have merit.
Presently before the court is petitioner’s objection to the Report and
Recommendation and petitioner’s motion for appointment of counsel. As to the
motion for appointment of counsel, the court finds the same should be denied. There
is no constitutional right to counsel beyond the appeal of a criminal conviction and
the appointment of counsel in a § 2254 proceeding is left to the discretion of the

court, unless an evidentiary hearing is required. Swazo v. Wyoming Dept. of
Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). In the
case at bar, no evidentiary hearing is required. The court declines to exercise its
discretion and appoint counsel to assist petitioner in filing an objection to the Report
and Recommendation or in filing an amended or corrected § 2254 petition. After
reviewing petitioner’s objection, the court finds that petitioner is capable of
adequately articulating his arguments. The issues addressed by Magistrate Judge
Jones in the Report and Recommendation are not complex and petitioner has
addressed those issues sufficiently. As to the request of counsel to assist petitioner
in amending or correcting the § 2254 petition, the court finds that such request is
moot because the court, as stated below, concurs with the analysis of Magistrate
Judge Jones. Because the court lacks jurisdiction over petitioner’s § 2254 habeas
petition, there is no need to amend or correct it. In sum, the court concludes that the
interest of justice does not require the appointment of counsel for petitioner.
With respect to petitioner’s objection to the Report and Recommendation, the
court, pursuant to 28 U.S.C. § 636(b)(1), has conducted a de novo review of the
matter. Having done so, the court concurs with the analysis of Magistrate Judge
Jones. The court finds no purpose in repeating that analysis in this order. The court
accepts, adopts and affirms the Report and Recommendation in its entirety.
Under Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, a “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” In order to obtain
a certificate of appealability, petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the court has
dismissed petitioner’s § 2254 habeas petition on procedural grounds, petitioner must
also show that “jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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After considering the record, the court concludes that petitioner cannot make the
required showing. Therefore, the court concludes that a certificate of appealability
should be denied.
Based upon the foregoing, petitioner’s motion for appointment of counsel
(doc. no. 11) is DENIED. The Report and Recommendation issued by United States
Magistrate Judge Bernard M. Jones on November 8, 2017 (doc. no. 9) is
ACCEPTED, ADOPTED and AFFIRMED. Petitioner’s petition for a writ of
habeas corpus under 28 U.S.C. § 2254 is summarily DISMISSED WITHOUT
PREJUDICE for lack of jurisdiction. A certificate of appealability is DENIED.
IT IS SO ORDERED this 17th day of November, 2017.

17-1117p002.docx

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