United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
a state prisoner appearing pro se, seeks a writ of
habeas corpus under 28 U.S.C. §§ 2241 and 2254
regarding his conviction in the District Court of Oklahoma
County in No. CF-1984-1993. See Doc. 1, at 1.
Pursuant to 28 U.S.C. § 636(b)(1), the matter was
referred to United States Magistrate Judge Shon T. Erwin for
preliminary review. On October 5, 2018, Judge Erwin issued a
Report and Recommendation (“R&R”) wherein he
recommended the habeas petition be denied. See Doc.
8. The matter is currently before the Court on
Petitioner's timely objection to the R&R,
see Doc. 9, which gives rise to this Court's
obligation to review de novo those portions of the
R&R to which Petitioner makes specific objection.
See Fed. R. Civ. P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.”); United States v. 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996) (“[A] party's
objections to the magistrate judge's report and
recommendation must be both timely and specific to preserve
an issue for de novo review by the district court . . .
.”). Having conducted this de novo review, the
Court ADOPTS Judge Goodwin's R&R and DISMISSES
Petitioner's habeas petition.
February 20, 1985, Petitioner pled guilty to first-degree
murder, first-degree rape, robbery with a dangerous weapon,
and oral sodomy. Id.; see also Doc. 1-3, at 2. He
was sentenced to life imprisonment for murder, 100 years
imprisonment for rape, 100 years imprisonment for robbery,
and 20 years imprisonment for oral sodomy. Id.
Petitioner neither appealed his conviction nor moved to
withdraw his plea. See Doc. 1, at 2; Doc. 1-3, at
6, 2017-over thirty-two years after his conviction-Petitioner
filed an Application for Post-Conviction Relief in Oklahoma
state court, asserting the following propositions of error:
. The trial court lacked subject matter
jurisdiction because the Information did not sufficiently
allege the elements of the charged offenses;
. Petitioner's convictions and sentences
violated constitutional protections against double jeopardy
and state statutory protections against multiple punishments
for the same criminal act;
. Petitioner's sentence was excessive;
. Petitioner's due process rights were
violated by the state parole board's failure to
promulgate certain rules for determining Petitioner's
sentencing under applicable statutory matrices; and
. Petitioner received ineffective assistance
of counsel when his attorney failed to investigate and raise
a double jeopardy objection and failed to negotiate a
favorable plea agreement.
See Doc. 1-3, at 3. The state district court denied
Petitioner relief on numerous procedural grounds on August
17, 2017, and the OCCA affirmed the denial on March 23, 2018.
See Doc. 1-3-1-4.
habeas petition, filed on September 4, 2018, Petitioner
asserts two grounds for relief. Ground 1, brought pursuant to
28 U.S.C. § 2254, is an ineffective assistance of
counsel claim-according to Petitioner, his trial counsel
abandoned him and failed to perfect his direct appeal.
See Doc. 1, at 5; Doc. 1-1, at 2-10. Ground 2,
brought pursuant to 28 U.S.C. § 2241, challenges
Petitioner's sentence; specifically, Petitioner argues
that Oklahoma's failure to promulgate
statutorily-mandated rules deprives him of his Due Process
rights by precluding a determination of his parole
eligibility. See Doc. 1, at 6-7; Doc. 1-1, at 10-11.
In his R&R, Judge Erwin denied Petitioner relief on both
grounds and dismissed the habeas petition, finding Ground 1
time-barred by the applicable provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”)
and Ground 2 meritless. Petitioner has objected to Judge
Erwin's disposition of both grounds.
argues in Ground 1 that his trial counsel was ineffective for
failing to perfect his direct appeal. Considering the
timeliness of Petitioner's habeas petition sua
sponte, Judge Erwin concluded that Petitioner was
time-barred from asserting Ground 1. Under AEDPA, “[a]
1-year period of limitation . . . appl[ies] to an application
for a writ of habeas corpus” by a person in state
custody. 28 U.S.C. § 2244(d)(1); Rhine v.
Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The
limitations period runs from the latest of
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...