United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN United States District Judge.
matter is before the Court for review of the Report and
Recommendation (“R. & R., ” Doc. No. 9)
issued by United States Magistrate Judge Shon T. Erwin on
April 17, 2019, pursuant to 28 U.S.C. § 636(b)(1),
Federal Rule of Civil Procedure 72(b), and Rule 4 of the
Rules Governing Section 2254 Cases in the United States
District Courts. Judge Erwin recommends dismissal of the
Petition for Writ of Habeas Corpus Under 28 U.S.C. §
2254 (“Petition, ” Doc. No. 1) because it was
has filed a timely written Objection (Doc. No. 10). Thus, the
Court must make a de novo determination of portions of the R.
& R. to which a specific objection has been made, and the
Court may accept, modify, or reject the recommended decision
in whole or in part. See 28 U.S.C. § 636(b)(1);
who appears pro se, seeks to challenge a 1985 conviction and
sentence to offenses to which he pleaded guilty in the
District Court of Oklahoma County, Oklahoma. Petitioner
failed to move to withdraw his guilty plea. As outlined in
the R. & R., and undisputed by Petitioner, Petitioner
filed various applications for postconviction relief and
appeals thereon between October 14, 2016, and February 7,
2019, before filing the instant Petition on February 13,
novo review of the record, the Court concurs with Judge
Erwin's suggested disposition of this matter. The
Petition is subject to the one-year statute of limitations
established by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. §
2244(d)(1). Under § 2244(d)(1)(A), Petitioner's
conviction and sentence became final on March 4, 1985. His
one-year limitations period therefore “began to run on
the date of AEDPA's enactment, April 24, 1996, and
expired on April 24, 1997.” Wood v. Milyard,
566 U.S. 463, 469 (2012); accord Fisher v. Gibson,
262 F.3d 1135, 1143 (10th Cir. 2001). Because that deadline
has long since expired, the Petition is time barred absent
statutory or equitable tolling.
Erwin found that statutory tolling does not apply in this
matter, and Petitioner's Objection offers no reasoned
factual or legal basis to contradict that finding.
See 28 U.S.C. § 2244(d)(2); Fisher,
262 F.3d at 1142-43. Petitioner does not argue actual
innocence but objects that he is entitled to statutory
tolling for various reasons, including the supposedly
governing nature of Murphy v. Royal, 875 F.3d 896
(10th Cir. 2017), cert. granted sub nom. Royal v.
Murphy, 138 S.Ct. 2026 (2018). Judge Erwin thoroughly
addressed this decision, concluding that its issuance does
not support equitable tolling in this matter. The undersigned
agrees. Neither this nor the other reasons cited by
Petitioner demonstrate that Petitioner “has been
pursuing his rights diligently” and “that some
extraordinary circumstance stood in his way, ” such
that tolling on this basis is appropriate. Holland v.
Florida, 560 U.S. 631, 649 (2010) (internal quotation
additionally argues that the timeliness of his Petition
should be assessed under § 2244(d)(1)(B)-i.e., that his
deadline did not begin to run until an unconstitutional
“impediment” created by the State (in the form of
Petitioner failing to meet his state-court deadlines and
failing to obtain relief in those courts) was removed on
January 9, 2019, by an appellate-court order affirming a
denial of postconviction relief by the trial court.
Petitioner fails to explain how he was prevented from filing
a federal habeas petition prior to the issuance of this order
or address how any of the state-court proceedings impeded his
ability to seek federal habeas relief. See Edwards v.
Keith, 276 Fed.Appx. 768, 769 (10th Cir. 2008);
Weibley v. Kaiser, 50 Fed.Appx. 399, 403 (10th Cir.
THEREFORE ORDERED that the Report and Recommendation (Doc.
No. 9) is ADOPTED in its entirety, and the Petition (Doc. No.
1) is DISMISSED without prejudice as untimely filed. Pursuant
to Rule 11(a) of the Rules Governing Section 2254 Cases in
the United States District Courts, 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.” 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); see also
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Upon
consideration, the Court finds the requisite standard is not
met in this case. Therefore, a COA is denied.
 Although Judge Erwin states that
Petitioner's deadline expired in March 1986, the