Sullivan v. Rios

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 13 and dismissing petitioner's Petition for Writ of Habeas Corpus [docket no. 1] for failure to state a cognizable federal habeas claim. Signed by Honorable Vicki Miles-LaGrange on 8/18/2015. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DELMA LAMAR SULLIVAN,

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Petitioner,
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v.
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H. A. RIOS, Warden, Lawton Correctional )
Facility,
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Respondent.
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Case No. CIV-15-67-M

ORDER
On June 12, 2015, United States Magistrate Judge Suzanne Mitchell issued a Report and
Recommendation in this action brought pursuant to 28 U.S.C. § 2254, seeking a writ of habeas
corpus. The Magistrate Judge recommended that petitioner’s Petition for Writ of Habeas Corpus
be dismissed for failure to state a cognizable federal habeas claim, or alternatively that
respondent’s motion to dismiss be granted and the petition be dismissed as time-barred. The
parties were advised of their right to object to the Report and Recommendation by July 2, 2015.
On June 26, 2015, petitioner filed his objection. In his objection, petitioner asserts that habeas
corpus relief should be available for petitioner, and others similarly situated, in instances where
the state court violates its post-conviction procedures. Petitioner further asserts that, pursuant to
28 U.S.C. § 2244(d)(1)(D), the one year time limit for him to apply for habeas corpus relief,
should have begun to run when petitioner received the affidavit from his co-defendant stating
that petitioner did not have the requisite criminal intent to be convicted and sentenced for First
Degree Murder, not when petitioner had the knowledge .1

1

On January 26, 1995, petitioner was sentenced to life imprisonment in the District Court
of Oklahoma County after a jury found him guilty of First Degree Murder. The Oklahoma Court
of Criminal Appeals affirmed the conviction and sentencing.

Accordingly, upon de novo review, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 13] issued by the
Magistrate Judge on June 12, 2015; and

(2)

DISMISSES petitioner’s Petition for Writ of Habeas Corpus [docket no. 1] for
failure to state a cognizable federal habeas claim.

IT IS SO ORDERED this 18th day of August, 2015.