Goodwin v. State of Oklahoma

Filing 6

ORDER adopting Report and Recommendations re 5 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 2/15/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GARY L. GOODWIN, JR.,
Petitioner,
v.
STATE OF OKLAHOMA,
Respondent.

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Case No. CIV-17-1338-D

ORDER
This matter is before the Court for review of the Report and Recommendation issued
by United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C. § 636(b)(1)(B)
and (C). Judge Purcell recommends that this action be dismissed for failure of Petitioner
to cure a deficient pleading, to pay the filing fee or seek leave to proceed in forma pauperis,
and to comply with orders to cure these deficiencies.
The case file shows no timely objection to the Report nor request for an extension
of time, even though Petitioner was expressly informed of his right to object, the procedure
for doing so, and the consequences of failing to object. Therefore, the Court finds that
Petitioner has waived further review of all issues addressed in the Report. See Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991); see also United States v. 2121 East 30th
Street, 73 F.3d 1057, 1060 (10th Cir. 1996). For the reasons explained by Judge Purcell,
the Court finds that this action should be dismissed without prejudice.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 5]
is ADOPTED in its entirety. This action is DISMISSED without prejudice. A separate
judgment of dismissal shall be entered.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner.

A COA may issue only upon “a

substantial showing of the denial of a constitutional right.” See 28 U.S.C. §2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, 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.”
McDaniel, 529 U.S. 473, 484 (2000).

Slack v.

“A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s resolution of his
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

(2003). Upon consideration, the Court finds the requisite standard is not met in this case.
Therefore, a COA will be denied. The denial shall be included in the judgment.
IT IS SO ORDERED this 15th day of February, 2018.

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