Marshall v. Trammell

Filing 13

ORDER ADOPTING 9 Report and Recommendation, DENYING 11 Motion for Evidentiary Hearing filed by Randall Joe Marshall, DENYING Certificate of Appealability. Signed by Honorable Stephen P. Friot on 7/22/11. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RANDALL JOE MARSHALL,

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Petitioner,
vs.
ANITA TRAMMELL, Warden,
Respondent.

Case No. CIV-11-0191-F

ORDER
This action seeks habeas relief under 28 U.S.C. § 2254.

Petitioner also

requests an evidentiary hearing and has moved separately for that relief. (Doc. no.
11.) Petitioner appears pro se, and his pleadings are liberally construed.
Magistrate Judge Bana Roberts entered her Report and Recommendation in this
matter on June 17, 2011, recommending that the petition be found untimely and that
it be dismissed on filing. (Doc. no. 9). Petitioner has filed an objection to the
magistrate judge’s recommended findings and conclusions. (Doc. no. 12) The court
reviews the objected to matters de novo.
In his objections to the Report, petitioner argues that he is entitled to equitable
tolling of the limitations period based on his double jeopardy argument, which he
characterizes as an argument “facially sufficient in showing legal innocence.” (Doc.
no. 12, p. 1.) Actual innocence claims sufficient to entitle petitioner to equitable
tolling require factual innocence. Petitioner’s objections include no arguments
regarding factual innocence. And see, Selsor v. Kaiser, 22 F. 3d 1029, 1034-35 (10th
Cir. 1994) (distinguishing claims of factual innocence from legal innocence; stating

that double jeopardy claims are claims of legal innocence which are insufficient to
establish a fundamental miscarriage of justice).
For these and other reasons stated in the Report, and having considered each of
petitioner’s objections to the Report whether or not detailed here, the court concludes
that it concurs with the magistrate judge’s determinations and that it would not be
useful to cite any additional arguments or authorities.
The Report and Recommendation of Magistrate Judge Roberts is ACCEPTED,
ADOPTED and AFFIRMED in its entirety. Accordingly, the Petition for a Writ of
Habeas Corpus is DISMISSED as time-barred. Petitioner’s request for an evidentiary
hearing is DENIED.
Movant is entitled to a certificate of appealability only upon making a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
This standard is satisfied by demonstrating that the issues movant seeks to raise are
deserving of further proceedings, debatable among jurists of reasons, or subject to
different resolution on appeal. See, Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(“[W]e give the language found in §2253(c) the meaning ascribed it in [Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)], with due note for the substitution of the word
‘constitutional.’”). “Where a district court has rejected the constitutional claims on
the merits,...[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id. When
a prisoner’s habeas petition is dismissed on procedural grounds without reaching the
merits of the prisoner’s claims, “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.” Id.

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The movant has not made the requisite showing and a certificate of
appealability is DENIED.
Dated this 22nd day of July, 2011.

11-0191p003.wpd

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