Barta v. Howard

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION for 9 Report and Recommendation. Petitioner, Richard L. Bartas petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as untimely. A certificate ofappealability is DENIED. Judgment shall issue forthwith. Signed by Honorable Stephen P. Friot on 6/30/15. (kr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RICHARD L. BARTA,
Petitioner,
-vsBRUCE HOWARD, Warden,
Howard McLeod Correctional
Center,
Respondent.

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Case No. CIV-14-1334-F

ORDER
United States Magistrate Judge Shon T. Erwin issued a Report and
Recommendation on June 11, 2015, wherein he recommended that the petition of
petitioner, Richard L. Barta, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed as untimely.
Presently before the court is petitioner’s timely objection to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1), the court has conducted
a de novo review of the matter. Having done so, the court concurs with the
recommended ruling. The court further finds that petitioner has failed to demonstrate
circumstances exist for equitable tolling. Therefore, the court accepts, adopts and
affirms the recommended ruling of dismissing petitioner’s § 2254 habeas petition as
untimely.
Rule 11 of the Rules Governing Section 2254 cases in the United States District
Courts provides that the court must issue or deny a certificate of appealability when
it enters a final order adverse to the petitioner. Section 2253(c) of Title 28 of the
United States Code instructs that the court may issue a certificate of appealability

“only if the [petitioner] has made a substantial showing of the denial of a
constitutional right,” and the court indicates “which specific issue or issues satisfy
[that] showing.” 28 U.S.C. § 2253(c)(2) and (3). A petitioner can satisfy that
standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further
proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle,
463 U.S. 880, 893 (1983)). Because the court’s ruling in the instant case was based
on procedural grounds, the petitioner must demonstrate 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.” Slack, 529 U.S. at 484. After
considering the record in this case, the court concludes that a certificate of
appealability should not issue as the petitioner has failed to satisfy the second prong
of the required showing, i.e., the court’s procedural ruling is debatable or incorrect.
Therefore, a certificate of appealability is denied.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Shon T. Erwin (doc. no. 9) is ACCEPTED, ADOPTED and
AFFIRMED. Petitioner, Richard L. Barta’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED as untimely.
appealability is DENIED. Judgment shall issue forthwith.
DATED June 30, 2015.

14-1334p001.wpd

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A certificate of