United States District Court, W.D. Oklahoma
TIMOTHY E. WRIGHT, Petitioner,
JANET DOWLING, Respondent.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE
matter is before the Court for review of the Report and
Recommendation [Doc. No. 7], issued by United States
Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Petitioner has timely objected
to the Report, which recommends summary dismissal of the
Petition with prejudice for untimeliness of claims.
Accordingly, the Court must make a de novo
determination of those portions of the Report to which a
specific objection is made, and may accept, modify, or reject
the recommended decision in whole or in part. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b)(3).
a state prisoner appearing pro se, seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his December 5, 2005 judgment of conviction in Cleveland
County District Court, No. CF-2005-640, and the partial
revocation of his suspended sentences in that same case on
March 26, 2013. Petitioner previously petitioned the Court
for the same relief in 2016. See Wright v. McCollum
(Wright I), No. CIV-16-923-D (W.D. Okla. Aug. 11,
2016). Following preliminary review of that matter, United
States Magistrate Judge Gary M. Purcell recommended that the
Petition “be dismissed without prejudice for lack of
exhaustion and, alternatively, with prejudice as
untimely.” [Wright I, Doc. No. 10]. After
Petitioner failed to object to Judge Purcell's
recommendation, the undersigned dismissed the petition
without prejudice for lack of exhaustion without reaching the
filed this federal action on September 28, 2018. [Wright
II, Doc. No. 1]. Judge Mitchell recommends that the
Petition be deemed time-barred under the one-year limitation
period of 28 U.S.C. § 2244(d)(1)(A). In his objection,
Petitioner does not dispute Judge Mitchell's historical
account of the state court proceedings; thus, the Court
accepts this portion of the Report. Nor does Petitioner raise
any specific objection to Judge Mitchell's analysis of
the untimeliness of his Petition under § 2244(d).
Rather, Petitioner focuses his objection on the substantive
merits of his claims.
Petitioner does not dispute that the timeliness of his
Petition depends on the applicability of the equitable
tolling doctrine. “Generally, a litigant seeking
equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). In this circuit, equitable tolling may
be appropriate when a prisoner has failed to file a timely
federal petition due to “extraordinary circumstances
beyond his control.” Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000); see also Gibson
v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000) (equitable tolling is limited to “rare and
exceptional circumstances”). In an effort to establish
the two elements for equitable tolling, Petitioner relies on
a letter that he presented to his state court judge at his
revocation hearing on March 26, 2013. Further, he appears to
rely on his state post-conviction efforts to excuse his
delay. However, he presents no unique fact that
prevented him from filing a federal petition within the
one-year period imposed by 28 U.S.C. §
2244(d)(1)(A). In summary, the Court finds Petitioner has
failed to allege any extraordinary circumstances that would
justify equitable tolling.
upon de novo consideration of the issues, the Court
finds that the claims in the Petition are time-barred and
should be dismissed as untimely pursuant to 28 U.S.C. §
THEREFORE ORDERED that Judge Mitchell's Report and
Recommendation [Doc. No. 7] is ADOPTED in its entirety.
Petitioner's claims are dismissed with prejudice as
time-barred. A judgment shall be issued forthwith.
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). “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 Slack v. McDaniel, 529
U.S. 473, 484 (2000). “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, 529 U.S. at 484. Upon consideration, the
Court finds the requisite standard is not met in this case.
Therefore, a COA is DENIED. The denial shall be included in
IS SO ORDERED.
 Petitioner has waived further review
of all issues as to which no specific objection is made.
See Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991).
 Petitioner filed his first application
for post-conviction relief on December 15, 2014, long after
his 2005 conviction and more than one year after his
revocation sentence became final. Petitioner never moved to
withdraw his plea or timely seek to appeal his 2005 judgment
of conviction. Further, he confessed the state's motion
to revoke ...