Rivera v. Mullin et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION of the Magistrate Judge...the petition is DISMISSED. See order for specifics. Signed by Honorable Joe Heaton on 06/28/2011. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RAMON RIVERA,
Petitioner,
vs.
MIKE MULLIN, ET AL.,
Respondents.

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NO. CIV-11-0173-HE

ORDER
Petitioner, a state prisoner appearing pro se, filed this action pursuant to 28 U.S.C.
§ 2254, seeking a writ of habeas corpus. Consistent with 28 U.S.C. § 636(b)(1)(B), the
matter was referred for initial proceedings to Magistrate Judge Bana Roberts, who
recommended, sua sponte, that petitioner’s petition be dismissed as untimely pursuant to 28
U.S.C. § 2244(d).1 Because petitioner has objected to the Report and Recommendation, the
matter is reviewed de novo. 28 U.S.C. § 636(b)(1).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amended 28
U.S.C. § 2244 to provide that 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.”
For petitioner, that period began to accrue when his conviction became “final” for AEDPA
limitation purposes on May 14, 2009, ten days from the date petitioner entered his plea

1

As the magistrate judge noted, “Pursuant to Rule 4 of the Rules Governing Section 2254
Cases, the Court is under an obligation to review habeas petitions promptly and to summarily
dismiss a petition ‘[i]f it plainly appears from the face of the petition . . . that the petitioner is
not entitled to relief . . . .’” Report & Recommendation [Doc. #7].

agreement.2 However, petitioner did not file this action until February 8, 2011—almost nine
months after the one-year limitations period had expired. Consequently, absent a basis for
tolling, the petition is untimely under § 2244(d)(1)(A).
Petitioner, in his objection [Doc. #8] to the Report and Recommendation, makes no
meaningful effort to contest or even address the timeliness issue that was the basis for the
magistrate judge’s decision. He offers no basis for tolling the running of the limitations
period. Rather, his objection appears to address unrelated matters involved in his, or
someone’s,3 claims.
Accordingly, for substantially the same reasons as stated by the magistrate judge, the
Report and Recommendation [Doc. #7] is ADOPTED, and the petition is DISMISSED.
IT IS SO ORDERED.
Dated this 28th day of June, 2011.

2

As the magistrate judge noted, the petition indicates petitioner pled guilty, but other
documents indicate he pled nolo contendre. In either event, petitioner “does not assert that he
timely attempted to withdraw his plea and admits that he did not appeal.” Report &
Recommendation [Doc. #7].
3

Petitioner’s objection is identical to the objection filed by petitioner Mac Clarence
Davis Jr., who is also suing Mike Mullin in this court. See Davis v. Mullin, et al., No. 11-CV0334-HE.
2