Smith v. Whetsel et al

Filing 30

ORDER denying 29 Motion to Compel Reconsideration filed by Franklin C Smith, adopting 21 Report and Recommendation, granting 14 Motion to Dismiss filed by Joe M Allbaugh, dismissing without prejudice the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, denying a certificate of appealability. Signed by Honorable Stephen P. Friot on 9/6/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRANKLIN C. SMITH,
Petitioner,
-vsJOE M. ALLBAUGH, et al.,
Respondents.

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Case No. CIV-18-0219-F

ORDER
Petitioner, appearing pro se, has filed an action seeking relief under 28 U.S.C.
§ 2254. On May 31, 2018, Magistrate Judge Gary M. Purcell issued a Report and
Recommendation (the Report, doc. no. 21), which recommends granting
respondent’s motion to dismiss (doc. no. 14) on the ground that petitioner is no
longer in custody on the concerned conviction, so that the “in custody” requirement
for habeas relief is not met.
Initially, the court adopted the Report and issued an order and judgment
accordingly. Doc. nos. 23, 24. Petitioner then filed a motion for reconsideration
which argued that he had not received the Report and therefore could not have filed
timely objections to the Report. The motion for reconsideration was granted. Doc.
no. 26. In that order, the court vacated its original order and judgment, and petitioner
was given additional time within which to object to the Report. Petitioner did so,
filing objections which were docketed on August 6, 2018. Doc. no. 27.
Recently, petitioner also filed a motion seeking reconsideration and relief
from the court’s original order and judgment under Rule 60(b)(3), Fed. R. Civ. P.
Doc. no. 29. As grounds for relief, the motion indicates that petitioner had not

received the Report in a timely fashion and therefore had not had a chance to file
timely objections. That argument was addressed and remedied when the court
vacated its original order and judgment and provided petitioner with additional time
for petitioner to object to the Report. Accordingly, the motion (doc. no. 29) is
DENIED.
Turning to petitioner’s objections to the Report, the court has reviewed all
objected to matters de novo. Having done so, the court finds that nothing stated in
those objections suggests any outcome other than the one recommended by the
magistrate judge, i.e. dismissal of the petition on the ground that petitioner has been
released from custody on the concerned conviction. The court agrees with the result
recommended by the magistrate judge and there is no need for further discussion
here.
Accordingly, petitioner’s objections to the Report (doc. no. 27) are DENIED,
and the Report (doc. no. 21) is ACCEPTED, ADOPTED and AFFIRMED.
Respondents’ motion to dismiss (doc. no. 14) is GRANTED. The petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice.
Movant is entitled to a certificate of appealability only upon making a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
This standard is satisfied by demonstrating that the issues movant seeks to raise are
deserving of further proceedings, debatable among jurists of reasons, or subject to
different resolution on appeal. See, Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(“[W]e give the language found in §2253(c) the meaning ascribed it in [Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)], with due note for the substitution of the word
‘constitutional.’”). “Where a district court has rejected the constitutional claims on
the merits,...[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
When a prisoner’s habeas petition is dismissed on procedural grounds without
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reaching the merits of the prisoner’s claims, “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.” Id. Petitioner has not made the requisite showing and a certificate of
appealability is DENIED.
IT IS SO ORDERED this 6th day of September, 2018.

18-0219p004.docx

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