Ellis v. Dowling et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION for 8 Motion to Dismiss filed by Janet Dowling, 12 Report and Recommendation; the Court ADOPTS the Report and Recommendation; GRANTS the respondent's Mtn Dism; DISMISSES this matter w/o prej. Signed by Honorable Lee R. West on 7/17/13. (ap)

IN THE UNITED STATES DISTRICT COURT FOR

F' LED
JUL 17 2013

THE WESTERN DISTRICT OF OKLAHOMA
BOBBY M. ELLIS,
Petitioner,
vs.
JANET DOWLING, Warden,
Respondent.

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R BERT D DENNI~ CLERK
O
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U DIST.,C.0URT, WESTERN DIST. OF OKLA
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BY :,0--/1/
DEPUTY .

No. CIV-13-471-W

ORDER
On June 27,2013, United States Magistrate Judge Gary M. Purcell issued a Report
and Recommendation in this matter, and he recommended that the Motion to Dismiss
Petition as Second and Successive [Doc. 8] filed by respondent Janet Dowling, Warden,
be granted and that the Petition for Writ of Habeas Corpus ("Petition") filed by petitioner
Bobby M. Ellis, proceeding pro se, be deemed an unauthorized successive petition and
dismissed as time-barred. Ellis was advised of his right to object, see Doc. 12 at 8, and
the matter now comes the Court on Ellis' Motion to Object to Report and Recommendation.
Upon de novo review of the record, the Court concurs with Magistrate Judge
Purcell's suggested disposition of the respondent's motion and Ellis' Petition.
Ellis was convicted by a jury of two counts of first degree rape, two counts of lewd
molestation and two counts of preparing child pornography in the District Court for Kay
County, Oklahoma.

State v. Ellis, No. CF-2003-536.

In accordance with the jury's

recommendations, Ellis was sentenced to terms of imprisonment of seventy-five (75) years
on each count of first degree rape, twenty (20) years on each count of lewd molestation

and ten (10) years on each count of preparing child pornography. The sentences were
ordered to be served consecutively.
Ellis appealed, and on October 12,2007, the Oklahoma Court of Criminal Appeals
("OCCA") affirmed his convictions and sentences as to all counts, except one count that
charged£lIis with preparing child pornography.1 Ellis v. State, No. F-2006-826 (Okla. Crim.
2007).
From October 2008 to April 2010, Ellis unsuccessfully sought post-conviction relief
in state court. Ellis v. State, No. PC-2009-238 (Okla. Crim. 2009); Ellis v. State, No. PC­
2009-1149 (Okla. Crim. 2010); Ellis v. State, No. PC-2010-53 (Okla . Crim. 2010).
In May 2010, Ellis filed suit in this judicial district seeking federal habeas relief under
title 28, section 2254 of the United States Code. See Ellis v. Parker, No. CIV-10-498-W.
Ellis' claims were subject to the one-year statute of limitations established by the
Antiterrorism and Effective Death Penalty Act of 1996,28 U.S.C. § 2244(d)(1), and retired
United States Magistrate Judge Sana Roberts, towhom the case had been referred, found
that Ellis' claims were time-barred. The Court agreed and held that although Ellis was
entitled to statutory tolling,

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id. § 2244(d)(2), his claims were nevertheless untimely

because he could not establish that he was entitled to equitable tolling. Accordingly, the
Court dismissed the action with prejudice on March 31,2011.

1The OCCA reversed Ellis' conviction on one count of preparing child pornography and
remanded the matter with instructions to dismiss. See Ellis v. State, No. F-2006-826, slip at 2
(Okla. Crim. 2007). As to Ellis' conviction on the second count of preparing child pornography, the
OCCA remanded the matter to the state district court to correct the Judgment and Sentence, which
inaccurately reflected that Ellis had been convicted of soliciting a minor for indecent exposure!
obscene material. See id.

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On appeal, the United States Court of Appeals for the Tenth Circuit declined to
issue a certificate of appealability. It found "that no reasonable jurist would debate th[is]
... [C]ourt's holding that . .. Ellis's petition [was] ... time-barred ... ," Ellis v. Parker, No.
11-6091, slip op. at 2 (10 th Cir. June 20, 2011), and dismissed the appeal.
On November 15,2012, Ellis filed an application again seeking post-conviction relief
in the District Court for Kay County, Oklahoma, for the alleged ineffective assistance of trial
and appellate counsel. The state district court denied Ellis' application, see Doc. 1-1, on
December 11, 2012, and on April 18, 2013, the OCCA affirmed. See Ellis v. State, No.
PC-2012-1162 (Okla. Crim. 2013).
In the instant Petition, Ellis has again complained about the assistance his trial and
appellate counsel rendered, and upon comparing Ellis' original Petition for Writ of Habeas
Corpus and the Petition filed in the case-at-bar, the Court concurs with Magistrate Judge
Purcell's finding that the claims in the instant Petition are successive. The Court, therefore,
lacks jurisdiction to consider the same.
The Court likewise finds no merit to Ellis' arguments that the decisions of the United
States Supreme Court in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper,
132 S. Ct. 1376 (2012), constitute new rules of constitutional law and/or apply retroactively
to provide relief.

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In re Graham, 714 F.3d 1181,1182 (10 th Cir. 2013)(percuriam).

Accordingly, the Court
(1) ADOPTS the Report and Recommendation [Doc. 12] filed on June 27,2013;
(2) GRANTS the respondent's Motion to Dismiss Petition as Second and Successive
[Doc. 8] filed on June 4, 2013; and

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(3) DISMISSES this matter without prejudice.
Cir.2008).
ENTERED this 17~ day of July, 2013.

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U, In re Cline, 531

F.3d 1249 (10th