Green v. Whetsel ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 7, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICKKE L. GREEN,
Petitioner-Appellant,
and
STACEY L. HEMPHILL; ROBERT L.
FOSTER; WILBUR G. COLSTON; No. 05-6260
JAMEY L. PATTON; WILLIE (D.C. No. 05-CIV-461-L)
PAYNE; and DANYALE (W. D. Okla.)
MCCULLOUGH,
Petitioners,
v.
JOHN WHETSEL, Sheriff,
Respondent-Appellee.
ORDER
Before HENRY, McKAY, and EBEL, Circuit Judges.
This is a pro se 28 U.S.C. § 2241 appeal brought by a state prisoner. The
original plaintiffs in this suit were seven Oklahoma state prisoners who claimed
that they were being unlawfully imprisoned because they were not represented by
counsel at their arraignments. They also sought class certification. Noting the
number of pending state criminal proceedings involving these inmates, a
magistrate recommended that the petition be denied under the Younger v. Harris
abstention doctrine. 401 U.S. 37 (1971). In the magistrate judge’s Report and
Recommendation, he clarified “[t]here are ongoing state proceedings concerning
the criminal charges filed against Petitioners. Petitioners have an adequate forum
to litigate their constitutional claims in a direct appeal should they be
convicted . . . . Moreover, Oklahoma has an important interest in enforcing its
criminal laws through criminal proceedings in the state’s courts.” Report and
Recommendation, 4 (May 10, 2005, W.D. Okla.). The magistrate judge
recommended denying the habeas petition of the prisoners and denying as moot
their application for class certification.
Petitioner Green timely filed a written objection to the Report and
Recommendation. The district court reviewed the objection but did not find it
sufficient to overturn the conclusions of the magistrate judge. The district court
adopted the magistrate judge’s Report and Recommendation in its entirety.
Order, 2 (June 13, 2005, W.D. Okla.). In a further order, the district court denied
Petitioner’s request to proceed without payment of the filing fee. Order, 2
(Aug. 12, 2005, W.D. Okla.).
Finding no merit in Petitioner’s argument, the district court also denied
Petitioner’s request for certificate of appealability. Order, 2 (Aug. 12, 2005,
W.D. Okla.). Petitioner now seeks from this court a certificate of appealability.
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The issues he raises on appeal are identical to those brought before the district
court.
To grant a certificate of appealability, Petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).
To meet this burden, Petitioner must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotation omitted).
Petitioner filed a motion to supplement his brief to our court, which we
grant and have reviewed. Application for Leave to Supplement Brief, Nov. 16,
2005.
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, the magistrate judge’s recommendation, and the record on appeal.
Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue
which meets our standard for the grant of a certificate of appealability. For
substantially the same reasons set forth by the magistrate judge and adopted by
the district court in its Order of August 12, 2005, we cannot say “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner.” Id.-3-
We DENY Petitioner’s request for a certificate of appealability and his
request to proceed in forma pauperis and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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