United States District Court, W.D. Oklahoma
L. PALK UNITED STATES DISTRICT JUDGE.
Wesley Duffield, a state prisoner appearing pro se, has filed
a Petition for a Writ of Habeas Corpus Under 28 U.S.C. §
2254 [Doc. No. 1]. Before the Court is the Supplemental
Report and Recommendation (“R. & R.”) [Doc.
No. 9] issued by U.S. Magistrate Judge Gary M. Purcell
pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). Upon
preliminary review Judge Purcell recommends the § 2254
Petition be dismissed as untimely. Judge Purcell finds the
claims in the Petition are subject to the limitations period
in 28 U.S.C. § 2244(d)(1)(A) and that the claims do not
qualify for statutory or equitable tolling of the applicable
limitations period. See R. & R. 5-12, Doc. No.
timely filed an Objection [Doc. No. 10] to the R. & R.
The Court reviews de novo any portion of the R. & R.to
which Petitioner has made specific objection. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
Objection, Petitioner claims that “the doctrine of
res-judicata/collateral estoppel” bars Judge
Purcell's recommendation and determination that
Petitioner's claims are time-barred by §
2244(d)(1)(A). Petitioner asks the Court to consider various
authorities related to (i) Executive Order No. 13781 (Mar.
13, 2017), (ii) Murphy v. Royal, 875 F.3d
896 (10th Cir. 2017), cert. granted, 138 S.Ct. 2026
(2018), and (iii) whether the statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to actual innocence claims.
None of the indicated authorities provide support for
granting habeas relief based on Petitioner's § 2254
novo review, the Court fully concurs with the analysis set
forth in the R. & R. The Court's order dismissing
Petitioner's § 2241 Petition in a prior case did not
“toll AEDPA, ” “remove state
impediments to [§ ]2254, ” or “address[ the]
facts of [Petitioner's] claims[ and find] them
true.” Pet. 5, Doc. No. 1; see also R. &
R. 3-4, Doc. No. 9. And Petitioner has not alleged any basis
for statutory or equitable tolling of the otherwise-expired
limitations period that applies to his claims. Petitioner
identifies no factual or legal bases that render the Judge
Purcell's determinations inaccurate or disputable.
Accordingly, Petitioner's § 2254 Petition will be
dismissed upon preliminary review.
Murphy, the Court concurs with Judge Purcell's
summary on the Tenth Circuit's decision therein:
“[T]he Murphy opinion did not create new law
but instead served to clarify whether a particular area of
land in Oklahoma was considered Indian country.” R.
& R. 7, Doc. No. 9; accord Canady v. Bryant, No.
CIV-18-677-HE, 2018 WL 3812250, at *1 (W.D. Okla. Aug. 10,
2018) (“Murphy did not conclude that
all reservations in Oklahoma continue to exist.
Rather, it explicitly recognized that the status of
particular reservations is determined on a case-by-case
basis.”), appeal filed, No. 18-6148 (10th Cir.
Aug. 17, 2018). Murphy addressed crimes occurring
within the reservation of the Muscogee (Creek) Nation. In
this case, Petition does not allege any relationship between
the crime he was convicted of and the Creek Reservation at
issue in Murphy. See Pet., Doc. No. 1. And,
even if the events underlying Petitioner's criminal
conviction occurred in Indian country, the issuance of the
Murphy opinion by the Tenth Circuit does not provide
an exception to the applicable statute of limitations for
applying AEDPA's statute of limitations to and the
possibility of equitable tolling for actual innocence claims,
the Court concurs with Judge Purcell's analysis that
Petitioner's § 2254 Petition does not assert an
actual, factual innocence claim, so AEDPA's
application is not an issue raised by Petitioner's §
2254 Petition. See R. & R. 11-13, Doc. No. 9.
the Court finds a hearing to be unnecessary. See
McQuiggin v. Perkins, 569 U.S. 383, 400 (2013)
(“[F]rivolous petitions should occasion instant
dismissal.”). Petitioner provides no authority for his
assertion that a hearing is necessary under the circumstances
of this case.
THEREFORE ORDERED that the Supplemental 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.
separate judgment of dismissal will be entered
contemporaneously to this Order.
FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases in the United States District
Courts, a Certificate of Appealability is DENIED. When a
habeas petition is denied on procedural grounds, a petitioner
is entitled to a COA only if he demonstrates 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); see Jimenez v. Quarterman, 555
U.S. 113, 118 & n.3 (2009) (treating decision dismissing
habeas petition as time-barred as a procedural ruling for
purposes of the COA standard). Where a habeas petition is
denied on the merits, Petitioner is entitled to a COA only if
he demonstrates “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). Petitioner has not made either showing.
Therefore, a COA is denied. This denial shall be included in