United States District Court, W.D. Oklahoma
TIMOTHY D.DeGIUSTI UNITED STATES DISTRICT JUDGE
matter is before the Court for review of the Report and
Recommendation [Doc. No. 9] issued by United States
Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Upon preliminary review of the
Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2254, Judge Mitchell finds that it is untimely under 28
U.S.C. § 2244(d)(1), and recommends summary dismissal.
Petitioner, who appears pro se, has filed a timely
Objection [Doc. No. 10]. Thus, the Court must make a de
novo determination of the portions of the Report to
which a specific objection is made, and may accept, reject,
or modify the recommended decision, in whole or in part.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
seeks to challenge convictions and sentences imposed by the
District Court of Oklahoma County, Oklahoma, on April 11,
1996, upon his pleas of guilty and no contest to multiple
crimes. Petitioner filed this action for federal habeas
corpus relief on April 19, 2018, asserting claims that his
sentences have been discharged by operation of state
legislative action, that state courts lacked jurisdiction
because his “crime was committed by an Indian, on an
Indian, in Indian country, ” and that the state court
failed to inform him of federal constitutional rights and
obtain a waiver, particularly of a “right to a grand
jury indictment.” See Pet. [Doc. No. 1] at 8,
9 (ECF page numbering). Based on the procedural history of
Petitioner's state court case, Judge Mitchell finds that
the one-year period to file a federal habeas petition, as
provided by 28 U.S.C. § 2244(d)(1)(A), expired no later
than July 2, 1997. Judge Mitchell further finds that
Petitioner alleges no basis for statutory or equitable
tolling or a finding of actual innocence. Judge Mitchell
therefore concludes that the Petition should be dismissed
upon filing as time-barred.
construing the arguments in Petitioner's Objection, the
Court finds that Petitioner challenges Judge Mitchell's
findings that all claims are governed by the time limit of
§ 2244(d)(1)(A) and that there is no basis for equitable
tolling. Review of all other issues addressed by
Judge Mitchell is waived. See Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991); see also
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060
(10th Cir. 1996).
Petitioner argues that the one-year time limit did not begin
to run when his convictions became final because other
provisions of § 2244(d)(1) apply. He contends that a
state impediment to filing - lack of access to a law library
or legal assistance - existed until 2017 when he obtained
help from another inmate and, therefore, his Petition is
timely under § 2244(d)(1)(B). See Obj. [Doc.
No. 10] at 1. He also alleges that unspecified “mental
and physical disabilities” prevented him from pursuing
relief without legal assistance. Id. Under
subsection 2244(d)(1)(B), the limitation period runs from
“the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State
action.” Plaintiff makes no factual allegations that
would satisfy this provision.
also invokes subsection 2244(d)(1)(D), under which the
one-year time limit runs from “the date on which the
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.”
None of Petitioner's claims are based on newly-discovered
facts. Therefore, the Court finds that Petitioner
has not shown that the limitation period of either (d)(1)(B)
or (d)(1)(D) applies.
Petitioner asserts that he is entitled to equitable tolling
because he has been pursuing his rights diligently “to
the best of his disability” and, during some time
period, “state impediments . . . ‘stood in his
way.'” See Obj. at 2. As noted above,
Petitioner refers to unidentified disabilities. Id.
Petitioner does not explain how these disabilities or
impediments prevented him from filing a timely habeas
petition. Petitioner alleges no facts to show “that he
has been pursuing his rights diligently” or “that
some extraordinary circumstance stood in his way.”
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
see also Holland v. Florida, 560 U.S. 631, 649
(2010). Therefore, the Court finds that Petitioner has failed
to allege sufficient facts to support equitable tolling of
the limitation period.
these reasons, upon de novo consideration of the
issues presented by Petitioner's Objection, the Court
fully concurs in Judge Mitchell's finding that the
Petition is time-barred.
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 9] is ADOPTED in its entirety. The Petition for a Writ of
Habeas Corpus Under 28 U.S.C. § 2254 is DISMISSED with
prejudice. Judgment shall be entered accordingly.
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 if Petitioner “has made a substantial showing of
the denial of a constitutional right.” See 28
U.S.C. § 2253(c)(2). “When the district court
denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim,
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.” 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
 Petitioner also seems to argue that
his nolo contendere plea did not become final when
it was entered, and he expressly argues that a criminal
judgment does not become final until a post-conviction
application is filed and state court remedies are exhausted.
See Obj. [Doc. No. 10] at 1. Petitioner provides no
legal authority for these contentions, and the Court is aware
of none. Statutory tolling would apply if a ...