Crisp v. Jones

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION of Magistrate Judge Purcell and grants respondent's motion to dismiss...petition is dismissed. Signed by Honorable Joe Heaton on 06/21/2012. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARWIN CRISP,
Petitioner,
vs.
JUSTIN JONES, Director,
Oklahoma Department of Corrections,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. CIV-12-0181-HE

ORDER
Petitioner Darwin Crisp, a state prisoner proceeding pro se, filed a petition for writ
of habeas corpus under 28 U.S.C. § 2254.1 Presently at issue is respondent’s motion to
dismiss the petition on the basis that it is time-barred by the statute of limitations. Consistent
with 28 U.S.C. § 363(b)(1)(B), the matter was referred for initial proceedings to Magistrate
Judge Gary M. Purcell. Judge Purcell has recommended that the petition be dismissed as
time-barred. The court agrees.
Mr. Crisp’s conviction became final on November 20, 2003. He did not file the
present habeas petition until February 17, 2012. As there does not appear to be any basis to
toll the one-year statute of limitations, his petition is time-barred by 28 U.S.C. § 2244(d)(1).
In his objection to the report and recommendation, petitioner argues that “[t]here
should never be a time-bar on a Petitioner’s pleading that clearly demonstrates a violation
of the defendant/petitioner’s constitutional rights and/or a manifest error in the judicial

1

Mr. Crisp’s petition seeks habeas relief on the basis that he was allegedly deprived of his right
to a speedy trial.

proceedings or law.” Objection [Doc. #14]. This argument is unavailing. See Miller v.
Marr, 141 F.3d 976, 977-78 (10th Cir. 1998) (holding the statute of limitations contained in
§ 2244(d)(1) does not violate the Suspension Clause); see also Dogan v. Roe, 8 Fed. Appx.
612, 613 (9th Cir. 2001) (unpublished opinion) (holding the statute of limitations does not
violation due process). Accordingly, the magistrate judge’s report and recommendation
[Doc. #13] is ADOPTED and respondent’s motion to dismiss [Doc. #9] is GRANTED. The
petition is therefore DISMISSED.
Having dismissed his petition, the court is required to either issue or deny petitioner
a certificate of appealability (“COA”). Rules Governing § 2254 Cases, Rule 11(a). “When
the district court denies a habeas petition on procedural grounds, a COA should issue only
when the prisoner shows 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.’” Sigala v. Bravo,
656 F.3d 1125, 1126 (10th Cir. 2011) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). As no reasonable jurist could find it debatable that Mr. Crip’s petition is timebarred, the court denies petitioner a COA.

A separate judgment will be entered

contemporaneously with this order. See Fed. R. Civ. P. 58(a).
IT IS SO ORDERED.
Dated this 21st day of June, 2012.

2