Stelly v. Patton

Filing 15

ORDER adopting Report and Recommendations 14 ; DENIES Stelly's Motion to Hold 28 U.S.C. § Petition in Abeyance; GRANTS 12 Allbaugh's Motion to Dismiss Petition for Writ of Habeas Corpus as Time-Barred; FINDS Stelly's claims are time-barred and thus, are denied on their merits for that reason; and DIRECTS judgment to be issued in favor of Allbaugh in accordance with Order. Signed by Honorable Lee R. West on 11/28/2016. (kb)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA

LARRY STELLY.
Petitioner,

)
)

vs.

No. CIV-15-1215-W

JOE M. ALLBAUGH, Director,

Oklahoma Department of Corrections,
Respondent.
ORDER

On October 19, 2016, United States Magistrate Judge Bernard M. Jones issued a

Report and Recommendation in this matter and recommended that the Court deny the

Motion to Hold 28 U.S.C. § Petition in Abeyance filed by petitioner Larry Stelly. ^a state
prisoner proceeding pro se, and grant the Motion to Dismiss Petition for Writ of Habeas
Corpus as Time Barred filed by respondent Joe M. Allbaugh, Director, Oklahoma
Department of Corrections. Although Stelly was advised of his right to objectto the Report
and Recommendation, see Doc. 14 at 17, and of the consequences of his failure to do so,
see jd-. no objections have been filed within the allotted time.

Upon review of the record, the Court concurs with Magistrate Judge Jones'

suggested disposition ofStelly's request for a stay and Allbaugh's request^ thatthe Court

""With one exception, Stelly's claims in his Petition for Writ of Habeas Corpus are
unexhausted. Because Stelly's claims lack merit and because Stelly has not shown good cause
for his failure to exhaust, a stay of this proceeding is not warranted. See Rhines v. Weber. 544
U.S. 269 (2005).

^The record shows that Stelly did not respond or object to Allbaugh's Motion to Dismiss
Petition for Writ of Habeas Corpus as Time Barred although Stelly had been advised that if
Allbaugh "file[d] a motion, . . . [he] may file a response within twenty-one days of the filing date."
Doc. 5 at 1.

dismiss this matter as untimely. All of the grounds for relief raised by Stelly in his Petition
for Writ of Habeas Corpus ("Petition") are subject to, and are barred by, the one {1)-year

statute of limitations established by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1).

Although no grounds exist in this case to statutorily or equitably toll this limitations

period, the Court is mindful that relief may nevertheless be warranted if the miscarriage of
justice exception exists.^ To the extent Stelly has claimed that he is entitled to relief in
connection with his ineffective assistance of counsel claims because he is "actually

innocent,"" Stelly was obligated to show that, in light of"new reliable evidence-whether it

be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence," Schlup v. Delo. 513 U.S. 298, 324 (1995), "'no juror, acting reasonably, would

have voted to find him guilty beyond a reasonable doubt."' McQuiqqin v. Perkins. 133 S.
Ct. 1924,1928 (2013)(quoting Schlup. 513 U.S. at 329). Stelly has not made that showing.
Accordingly, the Court

(1) ADOPTS the Report and Recommendation [Doc. 14] issued on October 19,
2016;

(2) DENIES Stelly's Motion to Hold 28 U.S.C. § Petition in Abeyance [Doc. 1-3] filestamped October 29, 2015;

^"[T]he rationale underlying the miscarriage of justice exception . . . ensur[es] 'that federal
constitutional errors do not result in the incarceration of innocent persons.'" IVicQuiqain v. Perkins.
133 S. Ct. 1924, 1936 (2013)(quoting Herrera v. Collins. 506 U.S. 390, 404 (1993)).

•"'[Ajctual innocence, if proved, serves as a gateway throughwhich a petitioner may pass[,]"
McQuiqqin v, Perkins. 133 S. Ct. 1924, 1928 (2013), even where "the impediment is [the] . . .
expiration of [AEDPA's one-year]. . . statute of limitations." Id

(3) GRANTS Allbaugh's Motion to Dismiss Petition for Writ of Habeas Corpus as
Time-Barred [Doc. 12] filed on March 1, 2016;

(4) FINDS Stelly's claims are time-barred and thus, are denied on their merits for
that reason,

In re Rains, 659 F.3d 1274, 1275 (lO'^Cir. 2011)(per curiam)(dismissal

of petition as time-barred is decision on merits); and

(5) DIRECTS judgment to be issued in favor of Allbaugh in accordance with this
Order.

ENTERED this _Zj^day of November, 2016.

WEST

'UNITfeP STATES DISTRICT JUDGE