United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
matter comes before the Court for review of the Report and
Recommendation (Doc. No. 9) issued by United States
Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. §
636(b)(1)(B) and (C). Petitioner, a state prisoner appearing
pro se, brought this action seeking habeas corpus relief
under 28 U.S.C. § 2254. Judge Erwin recommends that the
Petition for a Writ of Habeas Corpus (Doc. No. 1) be
dismissed as untimely.
February 25, 2019, Petitioner filed a timely objection to the
Report and Recommendation. See Objection to Report
and Recommendation (Doc. No. 10). Plaintiff's objection
triggers de novo review by this Court. See, e.g.,
United States v. 2121 East 30th Street, 73 F.3d
1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1);
Erwin concluded that the one-year limitations period for
Petitioner's habeas action began to run on July 8, 1999,
and expired on July 10, 2000. See Report and
Recommendation at 2-3. Judge Erwin further concluded: (1)
that statutory tolling was unavailable because
Petitioner's state application for post-conviction relief
was not timely filed; and (2) that Petitioner failed to
establish an entitlement to equitable tolling. See
Id. at 3-5.
objection, Petitioner makes various arguments but at no point
does he present any valid ground for statutory or equitable
tolling of the July 2000 deadline to file a habeas petition.
Petitioner most notably states that he “was just
recently able to understand minutely elements of
violations.” Objection at 2. But any prior failure on
his part to appreciate certain legal arguments would not
justify a late habeas petition: “‘ignorance of
the law, even for an incarcerated pro se petitioner,
generally does not excuse prompt filing.'”
Marsh v. Soares, 223 F.3d 1217 (10th Cir. 2000)
(citation omitted); accord Morrison v. Bryant, No.
CIV-16-268-HE, 2016 WL 4224011, at *4 (W.D. Okla. Apr. 29,
2016), report and recommendation adopted, No.
CIV-16-0268-HE, 2016 WL 4212276 (W.D. Okla. Aug. 9, 2016)
(“ignorance of the law does not excuse timely filing of
a habeas action and fails to justify Petitioner's lack of
diligence in pursuing federal habeas relief”).
Likewise, Petitioner's unexplained reference to
“ineffective assistance of counsel, ” Objection
at 2, does not satisfy his burden to show that extraordinary
circumstances prevented timely filing of a habeas petition
and that he acted with the requisite diligence. See Vue
v. Dowling, 716 Fed.Appx. 749, 752 (10th Cir. 2017),
cert. denied, 138 S.Ct. 1556 (2018), reh'g
denied, 138 S.Ct. 2713 (2018) (petitioner's claim of
ineffective assistance did not establish entitlement to
equitable tolling where petitioner “fail[ed] to provide
sufficient evidence that his lawyer's purported
negligence prevented him from filing a habeas application
within the one-year limitations period” and
“provide[d] no explanation for his failure to follow up
on the matter for the 17 years that passed between the time
his conviction became final and the time he sought habeas
relief in federal court”). The remainder of
Petitioner's objections are simply reassertions of the
substantive claims in his Petition, which Judge Erwin
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 upon “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). Upon consideration,
the Court concludes that the requisite standard is not met in
this case. Therefore, a COA is denied.
therefore ORDERED that the Report and Recommendation (Doc.
No. 9) is ADOPTED, and the Petition for Writ of Habeas Corpus
(Doc. No. 1) is DISMISSED with prejudice. It is further
ORDERED that a COA is DENIED. A separate judgment shall be
 Because Petitioner did not appeal the
guilty pleas entered on June 28, 1999, his conviction became
final ten days later. See Report and ...