Vargas v. Bear

Filing 15

ORDER ADOPTING 13 Report and Recommendation, GRANTING 11 Motion to Dismiss filed by Carl Bear, DISMISSING Petition for a Writ of Habeas Corpus, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 5/17/16. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARTIN VARGAS,
Petitioner,
-vsCARL BEAR,
Respondent.

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Case No. CIV-15-0949-F

ORDER
Petitioner Martin Vargas, a state prisoner appearing pro se whose pleadings are
liberally construed, seeks habeas relief under 28 U.S.C. § 2254.
On April 22, 2016, Magistrate Judge Shon T. Erwin entered a Report and
Recommendation (the Report). Doc. no. 13. The Report recommends granting the
motion to dismiss the petition as time-barred. Doc. 11. Petitioner did not file a
response to respondent’s motion to dismiss when that motion was pending before the
Magistrate Judge. Nevertheless, petitioner now objects to certain aspects of the
Report. For example, the objections do not contest the Report’s time calculations.
But petitioner argues, as he did in his sole ground for habeas relief, that he is actually
innocent of the crimes of which he was convicted so that he comes within an
exception to the general rule barring federal habeas petitions filed after the expiration
of the one-year limitation period. The Magistrate Judge addressed this argument in
his Report.
As required by 28 U.S.C. §636(b)(1), the court has reviewed all objected to
matters de novo. Having concluded that review, the court finds that it agrees with the
Report and that no purpose would be served by stating any further analysis here.

Accordingly, plaintiff’s objections to the Report are DENIED. The Report and
Recommendation of the Magistrate Judge is ACCEPTED, ADOPTED and
AFFIRMED. In accordance with the Report, the motion to dismiss the petition as
time-barred is GRANTED, and the petition for a writ of habeas corpus is
DISMISSED.
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.
Petitioner has not made the requisite showing, and a certificate of appealability is
DENIED.
Dated this 17th day of May, 2016.

15-0949p001.wpd

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