Hymel v. Harvanek et al

Filing 22

ORDER ADOPTING 16 Report and Recommendation, DISMISSING Petition for a Writ of Habeas Corpus as time-barred, DENYING request for an evidentiary hearing, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 7/9/15. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
REX L. HYMEL,
Petitioner,
-vsKAMERON HARVANEK, Warden,
Respondent.

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Case No. CIV-15-0197-F

ORDER
This action seeks habeas relief under 28 U.S.C. § 2254. Petitioner appears
pro se, and his pleadings are liberally construed.
Magistrate Judge Gary M. Purcell entered his Report and Recommendation in
this matter on May 14, 2015, recommending that the petition be dismissed as timebarred, or in the alternative that the petition be denied. Doc. no. 16. Petitioner has
filed an objection to the magistrate judge’s recommended findings and conclusions,
doc. no. 19, as well as first amended objections. Doc. no. 21. The court reviews the
objected to matters de novo.
After careful review, the court concurs with the magistrate judge’s
determinations and concludes it would not be useful to cite any additional arguments
or authorities here.1 The Report and Recommendation of Magistrate Judge Purcell

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In some instances, petitioner offers expanded arguments in his objections, which he did not
make to the magistrate judge. Issues which were not presented to the magistrate judge are not
considered at this stage. See, Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised
(continued...)

is ACCEPTED, ADOPTED and AFFIRMED in its entirety. Accordingly, the
Petition for a Writ of Habeas Corpus is DISMISSED as time-barred. The court also
notes petitioner’s statement, in his objections, that he requests an evidentiary hearing.
That request is DENIED.
Movant is entitled to a certificate of appealability only upon making a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
This standard is satisfied by demonstrating that the issues movant seeks to raise are
deserving of further proceedings, debatable among jurists of reasons, or subject to
different resolution on appeal. See, Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(“[W]e give the language found in §2253(c) the meaning ascribed it in [Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)], with due note for the substitution of the word
‘constitutional.’”). “Where a district court has rejected the constitutional claims on
the merits,...[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id. When
a prisoner’s habeas petition is dismissed on procedural grounds without reaching the
merits of the prisoner’s claims, “a COA should issue when the prisoner shows, at
least, 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.” Id.

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for the first time in objections to the magistrate judge’s recommendation are deemed waived.”);
Tracy v. Addison, 16 Fed. Appx. 928, 2001 WL 901142 (10th Cir. 2001) (unpublished habeas case,
cited per Tenth Circuit Rule 36.3, in which issue raised for the first time in objections to magistrate
judge’s report deemed waived, citing Marshall, supra.).

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Petitioner has not made the requisite showing and a certificate of appealability
is DENIED.
Dated this 9th day of July, 2015.

15-0197p003.wpd

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