Taylor v. Martin
Filing
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OPINION AND ORDER by Judge Terence Kern ; denying certificate of appealability; dismissing/terminating case (terminates case) ; dismissing 2 Petition for Writ of Habeas Corpus (2241/2254); granting 5 Motion to Dismiss (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
LAWRENCE JAMIR TAYLOR,
Petitioner,
vs.
TERRY MARTIN, Warden,
Respondent.
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Case No. 13-CV-363-TCK-FHM
OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Petitioner is a state inmate and is
represented by counsel. In response to the petition, Respondent filed a motion to dismiss petition
for writ of habeas corpus as time barred by the statute of limitations (Dkt. # 5), along with a
supporting brief (Dkt. # 6). Petitioner filed a response (Dkt. # 9) to the motion to dismiss.
Respondent filed a reply (Dkt. # 10). Petitioner filed a reply (Dkt. # 11) to Respondent’s reply. For
the reasons discussed below, Respondent’s motion to dismiss is granted and the petition is dismissed
with prejudice as time barred.
BACKGROUND
The record reflects that at the conclusion of a jury trial, held in Tulsa County District Court,
Case No. CF-2008-2033, Petitioner Lawrence Jamir Taylor was convicted of First Degree Murder
(Count 1), and Shooting With Intent to Kill (Count 2). See Dkt. # 2. In accordance with the jury’s
recommendation, the trial judge sentenced Petitioner to life imprisonment without the possibility
of parole on Count 1 and life imprisonment on Count 2, with the sentences to be served
consecutively. Id. Petitioner was represented at trial by attorney Richard Couch.
Represented by attorney Stuart Southerland, Petitioner appealed his convictions to the
Oklahoma Court of Criminal Appeals (OCCA). In a published Opinion, filed February 16, 2011,
in Case No. F-2009-486, the OCCA affirmed the Judgments and Sentences of the trial court. See
Dkt. # 6-2; Taylor v. State, 248 P.3d 362 (Okla. Crim. App. 2011). The OCCA summarized the
facts resulting in Petitioner’s convictions,1 as follows:
Sometime in mid-April, 2008, Anthony Baltazar bought a stereo from the
Appellant’s brother, Joekele Venson. Baltazar met the Appellant for the first time
at Big Joe’s stereo shop, where the sound system was being installed. Baltazar later
discovered that the stereo would not work. He was able to make contact with
Appellant, and through him, tried to make arrangements for Joekele Venson to return
the money paid for the stereo.
The State presented evidence that Appellant and Baltazar exchanged a series
of text messages and phone calls to arrange a meeting near the Ashley Park
apartment complex, between Sheridan and Yale Avenues on 71st Street in Tulsa.
Appellant actually lived approximately two hundred yards from the site of the
meeting, in the Eagle Point Apartments. Anthony Baltazar and his brother-in-law,
Joe Gomez, arrived at the meeting place between 10:00 and 10:30 p.m., on April 28,
2008.
According to Baltazar’s testimony at trial, Appellant opened the rear door of
Baltazar’s car and got inside. He then told Baltazar to drive to the other side of the
street because it was closer to his girlfriend’s apartment. As Baltazar was driving to
the other side of the street, he heard a shot. Baltazar remembered falling over the
center console of the car. He felt his spirit ascend from his body. He asked God for
a second chance, and then regained consciousness. The car had come to a stop in the
parking lot. Baltazar began honking on the horn. He had been shot in the back of
the head.
Baltazar’s honking attracted the attention of a young woman in the
apartments. From her second floor apartment she could see him sitting in the car,
with the door open and one leg on the ground. Baltazar told her he had been shot and
asked her to call 911. Baltazar’s girlfriend happened to call him on the cell phone
at some point. He told her he had been shot by “Joe’s little brother.” Tulsa Police
Officer Jeff Oloman responded to the scene, finding Baltazar still sitting in his
vehicle and conscious, but covered in blood. Joe Gomez was in the passenger seat,
apparently dead from a gunshot wound to the head. Police recovered what proved
1
A state court’s findings of fact are entitled to a presumption of correctness. See 28 U.S.C.
§ 2254(e)(1). A habeas petitioner has the burden of rebutting the presumption with clear and
convincing evidence. Id.
2
to be the murder weapon, a .38 Special caliber revolver, lying on the rear floorboard
near the front passenger seat.
Police traced Appellant’s residence to the nearby Eagle Point Apartments,
where he lived with his grandmother. The morning after the shooting, a police
detective interviewed Appellant’s grandmother. She told the detective that she had
seen Appellant around 10:30 p.m. the night before. He ran into her apartment,
sweating, and hid in a bedroom closet. When she asked him what was wrong, he
said “Nothing.” He then washed his hands in the bathroom, made a phone call, and
left the apartment. She heard a car door slam and a car speeding away. She had not
seen him since.
Appellant’s grandmother was not the only person to see him after the crimes.
Appellant called one of his friends, Cheatham, for a ride on the day after the
shootings. Cheatham testified he picked up Appellant at Promenade Mall. Appellant
was upset and nervous. Cheatham asked him what was wrong. Appellant replied
that he had “messed up.” Cheatham picked up Appellant again the following day.
Appellant was still agitated. He told Cheatham he believed he had killed two
Mexicans over a debt owed by him and another person. Appellant stated that he had
arranged to meet the men near the Ashley Park apartments, at which point he had
shot the driver and passenger from the back seat. Appellant also told Cheatham he
believed he had dropped his gun. Cheatham identified the pistol recovered from
Baltazar’s car as Appellant’s. Appellant also confessed the shooting to Cheatham’s
mother, Ms. Basham. She testified that Appellant told her he “shot two Mexicans,”
over money that he owed them. Appellant asked Ms. Basham for money to buy a
bus ticket, but she offered only to help him turn himself in to police. Cheatham and
Appellant then left her house.
Appellant also contacted another friend after the shootings, Ms. Vanco. She
testified that Appellant texted her, said he needed to talk, and asked if he could come
over to her house. When she asked why, he refused to tell her. He then asked if she
had watched the news. She asked Appellant if he was talking about a murder at
Observation Point. Appellant told her it was not that murder. Vanco then asked if
it was the murder where one Mexican had been killed and another shot. Appellant
said, “Yes.” Appellant and Cheatham visited Vanco’s house on May 1, 2008, three
days after the shootings. Appellant brought a bag into the house. He stated to Vanco
that someone had set him up, leaving his gun at the crime scene. He also stated that
the victims had been looking for him over a problem with his brother. Appellant said
he was leaving for Cleveland, Ohio, to live with his aunt. Police arrested Appellant
at Vanco’s apartment.
Police recovered Appellant’s bag from Vanco’s apartment. Inside they found
a cell phone bill in Appellant’s name and a spent .38 caliber cartridge. Ballistics
analysis of this shell casing matched it to the pistol recovered in Baltazar’s car. A
search of the apartment where Appellant lived with his grandmother recovered a box
of Independence brand .38 Special caliber ammunition in the same closet where
Appellant had hidden the night of the shooting. These cartridges were the same
brand and shared the same markings as the cartridges recovered from the pistol in
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Baltazar’s car and the spent casing found in Appellant’s bag. Investigators also
recovered Appellant’s fingerprints from the exterior of the left rear door of Baltazar’s
vehicle, the interior driver’s door handle and the left rear passenger door handle.
Investigators found a blood transfer stain in the rear seat, probably the result of the
shooter’s contact with the victims as he reached into the front of the vehicle to put
the transmission in park or unlock the rear doors.
The medical examiner testified that Joe Gomez died from a single gunshot
wound to the head. The projectile recovered from Mr. Gomez was .38 caliber in
size, and traveled through the brain from left to right, slightly downward, stopping
in his right cheek. The bullet severed the brain stem and caused instant death. The
bullet recovered from Mr. Baltazar’s head was a .22 caliber bullet.
The defense called witnesses who testified to inconsistent statements by Mr.
Baltazar concerning the identification of the shooter. He told a nurse at St. Francis
Hospital that he was shot by a stranger. He told a detective that he did not know who
shot him, only that the shooter was a black male. A physician’s assistant testified
that Baltazar was unable, or possibly unwilling, to identify the shooter. Appellant
did not testify.
Taylor, 248 P.3d at 366-68; Dkt. # 6-2 at 1-6. In affirming Petitioner’s Judgment and Sentence on
direct appeal, the OCCA adjudicated the following claims: (1) insufficient evidence supported the
conviction for Shooting With Intent to Kill, (2) the district court erred by failing to give an
instruction that each count should be considered separately, (3) extrajudicial statements by
Petitioner’s grandmother were admitted in violation of the rule against hearsay and Petitioner’s right
to confront his accusers, (4) photographs of the shooting victims were improperly admitted, (5) the
prosecutor engaged in improper conduct, and (6) cumulative error. See Dkt. # 6-2. The OCCA
found the trial court erred in admitting the statements of Petitioner’s grandmother, but that the error
was harmless. Id. at 10-24. In addition, the OCCA found that the prosecutor made erroneous
statements about the 85% Rule, but that the statements had no substantial influence on the outcome
of the trial and were, therefore, harmless. Id. at 29-33. After the OCCA affirmed his Judgment and
Sentence on direct appeal, Petitioner did not seek certiorari review in the United States Supreme
Court.
4
On September 16, 2011, Petitioner, represented by attorney M. Michael Arnett, filed an
application for post-conviction relief. See Dkt. # 6-3. He raised one proposition of error, as follows:
The petitioner was denied due process of law by being denied a fair and impartial
trial, in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution
of the United States of America and the Constitution and laws of the State of
Oklahoma.
See Dkt. # 6-3 at 2. The focus of Petitioner’s post-conviction claim was that a witness for the State,
Jason Cheatham, lied when he testified during Petitioner’s trial that, two days after the shootings,
Petitioner had confessed that he shot the two victims. Id. In support of his claim, Petitioner
provided the affidavit of Cheatham, executed on July 31, 2011. By order filed December 29, 2011,
the state district court denied post-conviction relief. See Dkt. # 6-4. Petitioner appealed. In his
brief in chief, Petitioner raised two claims, both challenging the state district court’s post-conviction
rulings, as follows:
Proposition One:
The court should have given the petitioner additional time to
subpoena Cheatham to testify and the court should have assisted
petitioner in getting Cheatham to the hearing and is an abuse of
discretion by the court and violative of the Petitioner’s rights a[s]
guaranteed by Article 2, Section 20 of the Oklahoma Constitution and
the Sixth and Fourteenth Amendments to the Constitution of the
United States of America.
Proposition Two:
The admission of the testimony of Rush concerning the truth and
veracity of the facts stated by Cheatham to Rush in an unsworn
statement should not have been considered because it is violative of
the Oklahoma Rules of Evidence and is an abuse of the discretion of
the court and violative of the petitioner’s right of due process
pursuant to Article 2, Section 7 of the Oklahoma Constitution and the
Fifth and Fourteenth Amendments to the Constitution of the United
States of America.
On August 3, 2012, in Case No. PC-2012-84, the OCCA affirmed the denial of post-conviction
relief. See Dkt. # 6-6.
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On June 19, 2013, Petitioner, represented by attorneys John Thomas Hall and M. Michael
Arnett, filed his federal petition for writ of habeas corpus (Dkt. # 2). In his petition, Petitioner
challenges only the post-conviction rulings made by the state district court. He claims that the state
district court erred in denying his application for post-conviction relief because (1) the court allowed
the prosecutor “to vouch for the credibility of Mr. Cheatham’s unsworn statements,” and (2) the
court abused its discretion “by not allowing the Petitioner additional time to locate Mr. Cheatham,
and have him at the PCR hearing.” See Dkt. # 2 at 10. Petitioner again relies on the affidavit of
Jason Cheatham, executed on July 31, 2011. See Dkt. # 2-1. In response to the petition, Respondent
filed a motion to dismiss (Dkt. # 5), arguing that the petition is time barred.
ANALYSIS
A. Any challenge to the judgment of conviction is time-barred
To the extent Petitioner’s claims could be construed as a challenge to the validity of his
convictions,2 his claims are time barred. The Antiterrorism and Effective Death Penalty Act
(AEDPA), enacted April 24, 1996, established a one-year limitations period for habeas corpus
petitions as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run 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 for seeking
such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
2
Significantly, Petitioner is represented by counsel in this case. Therefore, the Court is not
obligated to construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(stating that “the allegations of the pro se complaint [are held] to less stringent standards that formal
pleadings drafted by lawyers”).
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United States is removed, if the applicant was prevented from filing
by such State actions;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of
due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d). In general, the limitations period begins to run from the date on which a
prisoner’s conviction becomes final, but can also commence under the terms of § 2244(d)(1)(B), (C),
and (D). In addition, the limitations period is tolled or suspended during the pendency of a state
application for post-conviction relief properly filed during the limitations period. § 2244(d)(2).
Application of either 28 U.S.C. § 2244(d)(1)(A) or § 2244(d)(1)(D) leads to the conclusion
that Petitioner filed his habeas petition after expiration of the one-year limitations period. For
purposes of § 2244(d)(1)(A), Petitioner’s convictions became final on May 17, 2011, after the
OCCA concluded direct review on February 16, 2011, and the 90 day time period for filing a
petition for writ of certiorari in the United States Supreme Court had lapsed. See Locke v. Saffle,
237 F.3d 1269, 1273 (10th Cir. 2001). As a result, Petitioner’s one-year limitations clock began to
run on May 18, 2011, see Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011), and, absent
a tolling event, a federal petition for writ of habeas corpus filed after May 18, 2012, would be
untimely. See United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003) (applying Fed. R. Civ. P. 6(a)
to calculate AEDPA deadline).
Similarly, under § 2244(d)(1)(D), the “factual predicate” underlying Petitioner’s habeas
claims is that one of the State’s witnesses, Jason Cheatham, lied at trial when he testified that
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Petitioner told him, on April 30, 2008, that Petitioner had “killed two people.” If the information
contained in Cheatham’s affidavit is true, making his trial testimony false, then Petitioner knew or
should have known that Cheatham’s trial testimony was false when he heard the testimony on May
6, 2009. The fact that Petitioner did not obtain an affidavit from Cheatham until sometime in August
2011, or more than two years later, does not reflect diligence, as required to extend the limitations
deadline under § 2244(d)(1)(D). See Craft v. Jones, 435 F. App’x 789, 791 (10th Cir. 2011)
(unpublished).3 Therefore, § 2244(d)(1)(D) does not apply to trigger the running of the limitations
period when Petitioner obtained Cheatham’s affidavit, as argued by Petitioner. As Petitioner gains
no benefit from § 2244(d)(1)(D), the one-year limitations period in this case began to run when
Petitioner’s conviction became final, as discussed above.
The limitations period was tolled, or suspended, during the pendency of a “properly filed”
post-conviction proceeding. 28 U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th
Cir. 1998). On September 16, 2011, or with 245 days remaining in the one-year limitations period,
Petitioner filed his application for post-conviction relief. On August 3, 2012, the OCCA affirmed
the state district court’s denial of post-conviction relief. Therefore, the one-year limitations period
was tolled from September 16, 2011, through August 3, 2012. Once the OCCA entered its postconviction ruling on August 3, 2012, Petitioner had to file his habeas petition within the 245 days
remaining in his one-year period, or by April 5, 2013. Petitioner filed his petition on June 19, 2013,
or more than two months after expiration of the one-year limitations period. Therefore, unless
3
This and other unpublished opinions are cited herein for persuasive value. See 10th Cir. R.
32.1(A).
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Petitioner demonstrates that he is entitled to other statutory or equitable tolling, his petition is clearly
untimely.
In response to the motion to dismiss, see Dkt. # 9, Petitioner cites 28 U.S.C. § 2244(d)(1)(D)
and argues that his one-year limitations period should not begin to run until “early August, 2011,”
when he purports to have received Cheatham’s affidavit. However, the Court has determined above
that, under § 2244(d)(1)(D), the “factual predicate” of Petitioner’s habeas claims arose during
Petitioner’s trial when Cheatham allegedly gave false testimony. Therefore, § 2244(d)(1)(D) does
not serve to extend the limitations period.
Next, Petitioner incorrectly asserts that, after the state district court denied his application
for post-conviction relief, he is entitled to “90 days tolling to appeal.” See Dkt. # 9 at 4. Following
denial of post-conviction relief by an Oklahoma district court, a petitioner is entitled to tolling of
30 days, the time during which he may perfect a timely post-conviction appeal to the OCCA.
Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding that for a post-conviction appeal,
regardless of whether a petitioner actually appeals, the limitations period is tolled for thirty (30)
days, the period in which the petitioner could have sought a post-conviction appeal under state law).
The only 90 day time period relevant to the § 2244(d)(1)(A) limitations period is the 90 day time
period following conclusion of a state direct appeal when a petitioner may seek certiorari review at
the United States Supreme Court. Locke, 237 F.3d at 1273. In this case, Petitioner is not entitled
to an additional 90 days of tolling following the state district court’s denial of his application for
post-conviction relief.
Petitioner also argues that he is entitled to the benefit of the prison “mail box rule” for
determining when the one-year period began to run. See Dkt. # 11 (citing Houston v. Lack, 487
9
U.S. 266, 275-76 (1988) (finding that a “pro se prisoner’s [filing] will be considered timely if given
to prison official for mailing prior to the filing deadline, regardless of when the court itself receives
the documents”)). Apparently, Cheatham was in prison when he executed the affidavit. See id. at
1 (stating that “Cheatham and the Petitioner are not in the same prison”). However, the prison “mail
box rule” specifically applies to mailings from prisoners to courts. This Court is unaware of any
authority applying the prison “mail box rule” to mailings from one prisoner to another. Even if the
prison “mail box rule” were applicable under the facts of this case, nowhere in the record is there
any evidence demonstrating when Cheatham placed his affidavit in the mail to Petitioner or when
Petitioner received the affidavit from Cheatham. Of greater significance, the prison “mail box rule”
does not help Petitioner since, as determined above, the “factual predicate” of his claim arose at trial,
not when he received the affidavit from Cheatham.
The statute of limitations defined in 28 U.S.C. § 2244(d) is subject to equitable tolling.
Holland v. Florida, 560 U.S. 631, 645, 649 (2010); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.
1998). Equitable tolling applies only in “rare and exceptional circumstances.” Gibson, 232 F.3d
at 808 (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). A petitioner is entitled to
equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland, 560 U.S.
at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner’s burden in making
this demonstration is a heavy one: a court will apply equitable tolling only if a petitioner is able to
“‘show specific facts to support his claim of extraordinary circumstances and due diligence.’” Yang
v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307
(11th Cir. 2008)).
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Petitioner does not argue that he is entitled to equitable tolling and nothing in the record
suggests a basis for equitable tolling. The Court recognizes that, in his petition, Petitioner makes
the somewhat cryptic statement that he “makes some claim to actual innocence of the charges.” See
Dkt. # 2 at 8. As a result, Petitioner may argue that Cheatham’s affidavit could overcome the
timeliness bar by supporting a claim of actual innocence. See McQuiggin v. Perkins, 133 S. Ct.
1924, 1931 (2013); Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (“A claim of actual
innocence may toll the AEDPA statute of limitations.”). The Tenth Circuit has “stress [ed] that this
actual innocence exception is rare and will only be applied in the extraordinary case.” Lopez v.
Trani, 628 F.3d 1228, 1231 (10th Cir. 2010) (internal quotation marks omitted). “[P]risoners
asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence,
it is more likely than not that no reasonable juror would have found [the prisoner] guilty beyond a
reasonable doubt.” House v. Bell, 547 U.S. 518, 536-37 (2006) (internal quotation marks omitted).
Although Petitioner states that he “makes some claim” of actual innocence, his alleged “new
evidence,” the Cheatham affidavit, serves only as a recantation of Cheatham’s trial testimony that
Petitioner confessed to him. In and of itself, the affidavit does not support a claim of Petitioner’s
actual innocence. Furthermore, Petitioner is represented by counsel in this case. Therefore, as
stated above, the Court is not obligated to construe his pleadings liberally. Haines, 404 U.S. at 520.
Petitioner has failed to meet “the demanding standard for establishing actual innocence.”
Woodward v. Cline, 693 F.3d 1289, 1294 (10th Cir. 2012). He has not demonstrated entitlement
to equitable tolling. The petition for writ of habeas corpus is time barred.
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B. Challenges to post-conviction rulings are not cognizable
Assuming, without finding, that the one-year limitations period began to run under §
2244(d)(1)(D), from the date Cheatham executed his affidavit, then this petition was timely filed.4
Nonetheless, the Court finds that the claims raised in this petition do not raise cognizable federal
constitutional issues. Petitioner challenges only rulings entered by the state district court in his postconviction proceeding rather than the judgment of conviction. However, there is no federal
constitutional right to post-conviction review in the state courts. See Pennsylvania v. Finley, 481
U.S. 551, 557 (1987). Therefore, a claim of constitutional error that “focuses only on the State’s
post-conviction remedy and not the judgment which provides the basis for [the applicant’s]
incarceration . . . states no cognizable federal habeas claim.” Sellers v. Ward, 135 F.3d 1333, 1339
(10th Cir. 1998); see also Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (noting that
petitioner’s challenge to state “post-conviction procedures on their face and as applied to him would
fail to state a federal constitutional claim cognizable in a federal habeas proceeding”); Hopkinson
v. Shillinger, 866 F.2d 1185, 1219-20 (10th Cir. 1989) (stating that “a claim that procedural errors
occurred during the state post-conviction proceedings would not rise to the level of a federal
constitutional claim cognizable in habeas corpus”), overruled on other grounds, Sawyer v. Smith,
4
The Cheatham affidavit was executed July 31, 2011. See Dkt. # 2-1. Applying Fed. R. Civ.
P. 6(a)(1)(A), “the day of the event that triggers the period,” July 31, 2011, is excluded and the oneyear period began to run on August 1, 2011. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th
Cir. 2011). In the absence of tolling, the one-year period expired August 1, 2012. Petitioner is
entitled to 322 days of tolling for the time his post-conviction proceeding was pending. Thus, the
limitations deadline was extended 322 days beyond the original deadline of August 1, 2012, or to
June 19, 2013. Petitioner filed his petition on June 19, 2013, the last day of the limitations period,
if the one-year period commenced when Cheatham executed his affidavit.
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497 U.S. 227 (1990). As a result, Petitioner’s habeas claims, even if timely, would be dismissed for
failure to raise a cognizable federal constitutional claim.
CONCLUSION
Petitioner failed to file his petition for writ of habeas corpus within the one-year limitations
period. Respondent’s motion to dismiss shall be granted and the petition shall be dismissed with
prejudice as barred by the statute of limitations.
Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right,” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In addition,
when the Court’s ruling is based on procedural grounds, a petitioner must demonstrate 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.
In this case, the Court concludes that a certificate of appealability should not issue. Nothing
suggests that the Court’s procedural ruling resulting in the dismissal of the petition as time barred
is debatable or incorrect. The record is devoid of any authority suggesting that the Tenth Circuit
13
Court of Appeals would resolve the issues in this case differently. A certificate of appealability shall
be denied.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.
Respondent’s motion to dismiss petition for writ of habeas corpus as time barred by the
statute of limitations (Dkt. # 5) is granted.
2.
The petition for writ of habeas corpus (Dkt. # 2) is dismissed with prejudice.
3.
A certificate of appealability is denied.
4.
A separate Judgment shall be entered in this matter.
DATED this 31st day of January, 2014.
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