Boyd v. Jones

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 14 of Magistrate Judge Bernard Jones...respondent's motion to dismiss 8 is denied; petitioner's request to dismiss this action without prejudice is denied; respondent is directed to respond to the petition within 30 days of the date of this order consistent with the magistrate judge's prior order 6 . Signed by Honorable Joe Heaton on 04/18/2016. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEE EDWARD BOYD.
Petitioner,
vs.
JOE M. ALLBAUGH, Interim Director,
Oklahoma Department of Corrections,
Respondent.

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NO. CIV-15-1236-HE

ORDER
Petitioner Lee Edward Boyd, a state prisoner appearing pro se, filed a petition seeking
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Consistent with 28 U.S.C.
§636(b)(1)(B) and C, the matter was referred to Magistrate Judge Bernard M. Jones for initial
proceedings. Respondent move to dismiss the petition, claiming it was barred by the statute
of limitations, and petitioner sought leave to dismiss the action without prejudice to exhaust
an actual innocence claim, which he asserts is based on newly discovered evidence. The
magistrate judge recommends that respondent’s motion be denied. He also recommends that
petitioner not be allowed to dismiss the petition. Only respondent filed an objection to the
Report and Recommendation.
Respondent asserts that petitioner’s claims are untimely because he is not entitled to
statutory tolling for the period of time that his second post-conviction application has been
pending.

He contends that, because petitioner’s second application raises the same

propositions as his first application, which the state district court did rule upon, the purpose
of statutory tolling – to allow for the proper exhaustion of claims within the state court

system prior to seeking habeas relief in federal court – has been served.
The court agrees with the magistrate judge that because petitioner’s second application
is still pending in the state district court, respondent’s motion to dismiss the habeas petition
as untimely, pursuant to 28 U.S.C. § 2244(d)(2), should be denied.

Admittedly,

respondent’s argument that “[g]ranting Petitioner statutory tolling for his second postconviction application is inequitable because Petitioner’s aim, at the time he completed his
second application, was to simply force the district court to rule upon his first application .
. . .” Doc. #15, p. 6, has some appeal. The magistrate judge noted that, “[a]s a practical
matter, the result reached here is undesirable.” Doc. #14, p. 11. Nonetheless, as the
magistrate judge pointed out, “the state district court should have, and could have, readily
dispensed with the Second Application . . . [and] [i]ndeed, given the duplicative nature of
Petitioner’s state court filings, the state courts could have halted those filings by sanctioning
Petitioner.” Id. at p. 12. They did not and, as a result, petitioner’s claims are not barred by
the statute of limitations.
Petitioner failed to object to the magistrate judge’s Report and Recommendation. He
thereby waived his right to challenge the magistrate judge’s recommendation that his request
to dismiss the petition so that he could exhaust an actual innocence claim be denied. United
States v. One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996); see 28 U.S.C.
§636(b)(1)(C). The court also agrees with the magistrate judge that plaintiff has failed to
demonstrate that a dismissal is warranted.
Accordingly, the court ADOPTS Magistrate Judge Jones’s Report and

Recommendation. Respondent’s motion to dismiss [Doc. # 8] is DENIED. Petitioner’s
request to dismiss this action without prejudice also is DENIED. Respondent is directed to
respond to the petition within thirty (30) days of the date of this order, consistent with the
magistrate judge’s prior order [Doc. #6].
IT IS SO ORDERED.
Dated this 18th day of April, 2016.