United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
a state prisoner appearing pro se, filed this action
pursuant to 28 U.S.C. § 2254, seeking a writ of habeas
corpus. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C),
the matter was referred to United States Magistrate Judge
Shon T. Erwin for preliminary review. On January 31, 2018,
Judge Erwin issued a Report and Recommendation wherein he
recommended the Court dismiss the petition as untimely.
See 28 U.S.C. § 2244(d)(1). The matter is
currently before the Court on Petitioner's timely
objection to the Report and Recommendation, which gives rise
to the Court's obligation to undertake a de novo
review of those portions of the Report and Recommendation to
which Petitioner makes specific objection. Having conducted
this de novo review, the Court finds as follows.
conviction became final on March 6, 2014, ten days after his
February 24, 2014 sentencing. As noted in the Report and
Recommendation, without tolling his statute of limitations
expired on March 6, 2015. Petitioner's first application
for state post-conviction relief was not filed until June 27,
2016, after expiration of the § 2244 one-year
limitations period, and therefore statutory tolling is not
available to him. Thus, if he is to proceed, Petitioner must
establish that he is entitled to equitable
contends he is entitled to equitable tolling of the statute
of limitations period because counsel abandoned him after
sentencing on his guilty plea. Despite repeated efforts to
contact counsel, counsel did not respond, and therefore
Petitioner could not seek to withdraw his guilty plea or seek
a direct appeal. Petitioner, however, does not explain the
more than two-year delay between the alleged abandonment in
March 2014 and his June 2016 petition for post-conviction
objection, Petitioner cites McQuiggin v. Perkins,
569 U.S. 383 (2013), for the proposition that he can use the
cause and prejudice as a gateway to any procedural or
limitations bar. In McQuiggin, the Supreme Court
held that “actual innocence, if proved, serves as a
gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or . . . expiration of
the statute of limitations.” Id. at 386.
The standard for a gateway actual-innocence claim is
“demanding, ” requiring “evidence of
innocence so strong” that it undermines our confidence
in Slinkard's conviction. McQuiggin, 133 S.Ct.
at 1936 (quoting Schlup, 513 U.S. at 316, 115 S.Ct.
851). That standard is even more demanding for a habeas
applicant who, like Slinkard, pleads guilty to the crimes for
which he stands convicted. See, e.g., Johnson v.
Medina, 547 Fed.Appx. 880, 885 (10th Cir. 2013)
(unpublished) (citing cases rejecting actual-innocence
arguments asserted by habeas petitioners challenging
convictions obtained through guilty pleas).
Slinkard v. McCollum, 675 Fed.Appx. 851, 855 n. 3
(10th Cir. Jan. 11, 2017). Petitioner fails to
carry his heavy burden of showing that it is more likely than
not that no reasonable juror would have convicted him, and
further, actual innocence claims rely on “new”
evidence. Petitioner points to no new evidence that would
have undermined his plea. Petitioner fails to establish that
this case is one of the rare cases that meets the demanding
test for avoiding the statute of limitations period for
filing a § 2254 motion.
reasons set forth herein, the Report and Recommendation
wherein Judge Erwin recommended dismissal of the petition as
untimely is HEREBY ADOPTED IN ITS ENTIRETY, this matter is
dismissed, and judgment shall be entered in favor of the
Respondent. Petitioner's Motion for An Evidentiary
Hearing (Doc. No. 11) is DENIED as no such hearing is
necessary. Finally, Petitioner's Motion for Appointment
of Counsel (Doc. No. 10) is DENIED AS MOOT.
 Petitioner complains the Report and
Recommendation does not address the merits of his petition.
The Court, however, will not issue a substantive ruling on
untimely claims, and therefore, Judge Erwin's decision to
address the timeliness of the Petition first was entirely
 Petitioner contends the Court must
conduct an evidentiary hearing in light of the conflicting
affidavits attached to his objection. Statements from his
family indicate that counsel did not get in touch with
Petitioner or respond to their inquiries regarding
withdrawing his plea, and Mr. Blau indicates that no such
instruction was ever given. The Court need not resolve the
issue, because Petitioner waited more than two years before
seeking relief in the District Court of Oklahoma County after
he was allegedly abandoned by Mr. Blau. Petitioner is
obligated to show both that extraordinary circumstances stood
in his way and that he ...