Opinion
CIV-21-445-D
08-20-2021
QUINCY BARNES, Petitioner, v. LONNIE LAWSON, Warden Respondent.
ORDER
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
Upon review of the file and noting no timely objection to the findings and recommendations of United States Magistrate Judge Gary M. Purcell pursuant to 28 U.S.C § 636(b)(1), the Court adopts the Report and Recommendation [Doc. No. 12] in its entirety. For the reasons stated therein, the Court finds the Respondent's Motion to Dismiss [Doc. No. 10] should be GRANTED.
IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus [Doc. No. 1] should be and is hereby DISMISSED WITHOUT PREJUDICE.
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.” 28 U.S.C. § 2253(c)(2). “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); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration, the Court finds the requisite standard is not met in this case. Therefore, a COA is denied.
The Rules Governing Section 2254 Cases provide that a “district court may apply any or all of these rules to a habeas corpus petition not [brought under § 2254].” Rules Governing Section 2254 Cases, Rule 1(b); see also Heath v. Norwood, 325 F.Supp.3d 1183, 1197 n. 9 (D. Kan. 2018). The Court elects to do so here.
IT IS SO ORDERED.