Burchett v. Bear et al

Filing 10

ORDER ADOPTING 8 Report and Recommendation, DISMISSING WITHOUT PREJUDICE (1) Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 2/25/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EUGENE BURCHETT,
Petitioner,
-vsWARDEN BEAR, et al.,
Respondent.

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Case No. CIV-18-32-F

ORDER
On February 8, 2018, United States Magistrate Judge Shon T. Erwin issued a
Report and Recommendation, recommending that petitioner, Eugene Burchett’s
petition for a writ of habeas corpus under 28 U.S.C. § 2241 be summarily dismissed
without prejudice.
Presently before the court is petitioner’s 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 petitioner’s arguments to
be without merit. In addition, the court finds that petitioner is not entitled to a
hearing. Under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition. . . .” Id. (emphasis added); see also, Rule 1(b) of the Rules
Governing Section 2254 Cases in the United States District Courts (“The district
court may apply any or all of these rules to a habeas corpus petition not covered by
Rule 1(a).”) The court agrees with Magistrate Judge Erwin that it plain from the

petition that petitioner is not entitled to relief. Thus, pursuant to Rule 4, the court
must dismiss the petition rather than grant a hearing.
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). 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). 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, the Report and Recommendation issued by United
States Magistrate Judge Shon T. Erwin on February 8, 2018 (doc. no. 8) is
ACCEPTED, ADOPTED and AFFIRMED.

Petitioner, Eugene Burchett’s

petition for a writ of habeas corpus under 28 U.S.C. § 2241 is summarily
DISMISSED WITHOUT PREJUDICE.

A certificate of appealability is

DENIED.
IT IS SO ORDERED this 25th day of February, 2018.

18-0032p002.docx

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