Jones v. Taylor et al

Filing 33

ORDER ADOPTING 32 REPORT AND RECOMMENDATION and DENYING 30 Motion for Order filed by Robert Charles Jones. Signed by Honorable Lee R. West on 7/10/13. (kw, )

IN THE UNITED STATES DISTRICT COURT FORF

JUL 1 0 2013

THE WESTERN DISTRICT OF OKLAHOMA
ROBERT CHARLES JONES,
Petitioner,
vs.
JOSEPH L. TAYLOR, Warden,
Respondent.

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I LED

ROBERT D. DENNI5,CLERK
U DIS .C04,RT, WESTERN DIST. OF OKIA
.S.
BY
DEPUTY

No. CIV-11-894-W

ORDER
On October 14, 2011, retired United States Magistrate Judge Sana Roberts issued
a Report and Recommendation in this matter and recommended that the Motion to Dismiss
filed by respondent Joseph L. Taylor, Warden, be granted and that the Petition for Writ of
Habeas Corpus ("Petition") filed by petitioner Robert Charles Jones pursuant to title 28,
section 2254 of the United States Code be dismissed. See Doc. 12. Jones was advised
of his right to object, see Doc. 12 at 8, and the matter came before the Court on Jones'
Response to Magistrate Report and Recommendation, see Doc. 15, and his request that
the Court take judicial notice of the decision of the Oklahoma Court of Criminal Appeals
("OCCA") in Pickens v. State, 158 P.3d 482 (Okla. Crim. 2007). See Doc. 16.
Jones' Petition and the grounds raised therein were 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). For AEDPA purposes, Jones' convictions in the
District Court for Canadian County, Oklahoma, after his pleas of nolo contendere to
charges of distribution of child pornography, State v. Jones, No. CF-2004-457, and of child
sexual abuse, State v. Jones, No. CF-2004-458, became final on December 16, 2004. The

one-year limitations period began to run on December 17, 2004, and Jones therefore had
until December 17, 2005, to seek relief under section 2254. Jones' Petition was executed
on August 4, 2011, see Doc. 1 at 14, and file-stamped August 8,2011. Accordingly, the
claims in Jones' Petition were time-barred unless Jones could establish that the one-year
limitations period had been tolled.
Because the record revealed that Jones was neither entitled to statutory tolling, ~,
28 U.S.C. § 2244(d)(2)(time during which properly filed application for post-conviction or
other collateral review pending not counted), nor to equitable tolling,

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Holland v.

Florida, 130 S. Ct. 2549 (2010), the Court, upon de novo review of the record, concurred
with Magistrate Judge Roberts' suggested disposition of Taylor's Motion to Dismiss as well
as her recommendation that the Court dismiss this matter as time-barred. Accordingly, the
Court on December 7,2011, adopted the Report and Recommendation [Doc. 12] issued
on October 14,2011, and dismissed Jones' Petition with prejudice. See Docs. 17, 18.
Jones filed a Notice of Intent to Appeal [Doc. 19], which the Court construed as a
request for a certi"flcate of appealability ("COA"), to appeal the Court's dismissal of the
Petition. See 28 U.S.C. § 2253(c)(1 )(A). Because the Court had denied the Petition "on
procedural grounds without reaching the ... underlying constitutional claim, ... [Jones was
required to] show[] ... that jurists of reason would find it debatable whether the [P]etition
state[d] a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the ... [C]ourt was correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Upon review of the record and after consideration
of the second prong of the Court's inquiry under section 2253(c)(2) and Slack, the Court

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concluded that "jurists of reason" would not find the Court's dismissal of Jones' claims on
procedural grounds debatable or incorrect and declined to issue a COA. See Doc. 22.
On June 11, 2012, the United States Court of Appeals for the Tenth Circuit entered
its Order denying a COA, Jones v. Taylor, No. 11-6337 (10 th Cir. 2012), after concluding
that "[n]o reasonable jurist could debate the correctness of the ... [C]ourt's decision." Id.
slip op. at 5.
In December 2012,1 Jones filed a Motion for Relief pursuant to Rule 60(b),
F.R.Civ.P., challenging the Court's Order and Judgment entered on December 7, 2011.
Jones' Motion for Relief was referred to United States Magistrate Judge Suzanne Mitchell,
and the matter now comes before the Court on Magistrate Judge Mitchell's Report and
Recommendation. See Doc. 32. Jones was advised of his right to object, see id. at 10,
but no objections have been filed within the allotted time.
Upon review of the record and in the absence of any objection,2 the Court finds that
Magistrate Judge Mitchell has fully and accurately dealt with the issues presented by Jones
in his Motion for Relief, and it concurs with her findings with regard to both the timeliness
of the motion under Rule 60(b)(1), (b)(3) and (b)(6), supra, and its merits.
Accordingly, the Court
(1) ADOPTS the Report and Recommendation [Doc. 32] filed on June 7,2013; and

1Compare Doc. 30 at 15 (December 4, 2012), with id. at 17 (December 11, 2012), and Doc.
30-7 (December 9,2012).
21n the absence of an objection, the Court may review the Magistrate Judge's Report and
Recommendation under any standard that the Court deems appropriate. U, Thomas v. Am, 474
U.S. 140, 150 (1985)(Congress did not intend to require district court to review magistrate's factual
or legal conclusions under any standard when neither party objects); Summers v. Utah, 927 F.2d
th
1165, 1167 (10 Cir. 1991)(district court accorded considerable discretion with respect to treatment
of unchallenged magistrate reports).

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(2) DENIES Jones' Motion for Relief [Doc. 30] file-stamped December 13, 2012.
ENTERED this IPtL

day of July, 2013.

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