Russell v. Oklahoma State of

Filing 8

ORDER ADOPTING 6 Report and Recommendation; DISMISSING this action without prejudice, as untimely; DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 8/28/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
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KENNETH R. RUSSELL, JR.,
Petitioner,
-vsJOE ALLBAUGH,
Respondent.

Case No. CIV-18-0379-F

ORDER
Petitioner Kenneth R. Russell, Jr., seeks habeas relief under 28 U.S.C. § 2254.
Petitioner appears pro se and his pleadings are liberally construed.
On July 31, 2018, Magistrate Judge Charles B. Goodwin entered a Report and
Recommendation (the Report, doc. no. 6), recommending the court dismiss the
petition without prejudice, as untimely.
Petitioner objects to the Report, arguing that dismissal, in these circumstances,
is fundamentally unfair and making other arguments. Doc. no. 7.
As required by 28 U.S.C. §636(b)(1), the court has reviewed the Report in its
entirety and has reviewed all objected to matters de novo. The Report addresses, in
detail, the reasons for the magistrate judge’s conclusions that the petition should be
dismissed as untimely. After careful consideration of petitioner’s objections, the
court finds that nothing stated there changes the court’s conclusion, in agreement
with the magistrate judge, that the petition is untimely. The Report’s analysis is
correct and will be adopted. Furthermore, given the Report’s detailed analysis, there
is no need for further discussion of any issues here.

Petitioner’s objections to the Report are DENIED. Doc. no. 7. The Report
and Recommendation of the Magistrate Judge (doc. no. 6) is ACCEPTED,
ADOPTED and AFFIRMED. In accordance with the Report, this action seeking a
writ of habeas corpus pursuant to 28 U.S.S. § 2254 is DISMISSED without
prejudice, as untimely.
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
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 28th day of August, 2018.

18-0379p001.docx

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