Parker v. Oklahoma State of

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION for 18 Report and Recommendation, 14 Motion to Dismiss filed by David Miller. The court ADOPTS the report and recommendation, GRANTS the respondent's motion [Doc. #14], and DISMISSES the petition as untimely. Signed by Honorable Joe Heaton on 1/25/10. (jw, )

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA DERRICK DEWAYNE PARKER, Petitioner, vs. STATE OF OKLAHOMA, Respondent. ) ) ) ) ) ) ) )

Case No. CIV-09-1075-HE

ORDER Petitioner Derrick Parker seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the Respondent, the State of Oklahoma, moves for dismissal on grounds of timeliness. Consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred for initial proceedings to Magistrate Judge Robert E. Bacharach, who issued a Report and Recommendation recommending that the action be dismissed as untimely. Because petitioner has objected to the Report and Recommendation, the matter is reviewed de novo. 28 U.S.C. § 636 (b)(1)(C). A petitioner has one year to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The Magistrate Judge concluded that the petitioner's one-year period began to run on the date his conviction became final, November 4, 1999, expiring one year later.1 Id. § 2244(d)(1)(A). At the earliest, the petition here was filed on September 23, 2009, nearly nine

Petitioner argues that 28 U.S.C. § 2244(d)(1)(C) controls. That provision begins the one-year period on "the date which the constitutional right asserted was initially recognized . . . and made retroactively applicable to cases on collateral review." Petitioner contends that his limitation period should begin from the issuance of Oregon v. Ice, __U.S.__, 129 S.Ct. 711, 717­20 (2009). As the Magistrate Judge concluded, however, that case neither recognized a new constitutional right, nor is applicable in any way to the petitioner's circumstances.

1

years too late. For substantially the same reasons as stated by the Magistrate Judge, the court concludes that the one-year limitation period applicable to petitioner's claim has expired and that no basis exists for statutory or equitable tolling. Accordingly, the court ADOPTS the Report and Recommendation, GRANTS the respondent's motion [Doc. No. 14], and DISMISSES the petition as untimely. IT IS SO ORDERED. Dated this 25th day of January, 2010.