Stewart v. Bear et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION 8 of Magistrate Judge Charles B. Goodwin...the petition for writ of habeas corpus 1 is dismissed as untimely; the court concludes that jurists of reason would not find this procedural issue debatable, and denies issuance of a certificate of appealability. Signed by Honorable Joe Heaton on 4/7/2017. (Attachments: # 1 Attachment 1 - Report and Recommendation)(cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
WARREN MONROE STEWART,
Petitioner,
vs.
CARL BEAR, Warden,
Respondent.

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NO. CIV-16-0837-HE

ORDER
Petitioner Warren Monroe Stewart, a state prisoner appearing pro se, filed this
action seeking habeas relief under 28 U.S.C. § 2254. This matter was referred to U.S.
Magistrate Judge Charles B. Goodwin for initial proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B). Judge Goodwin recommends the dismissal of the application on the basis
it was filed outside the limitations period set out in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1). Petitioner filed a timely
objection to the Report and Recommendation (the “Report”), prompting de novo review of
the issues raised in the objection.
Under the AEDPA, a petition under § 2254 must be filed within one year from the
date on which the judgment became final by an appeal or expiration of the time for appeal,
subject to certain statutory tolling provisions. § 2244(d)(1). The Report concluded that
petitioner’s judgment and sentence became final on May 2, 2011, which petitioner does
not dispute. The Report further concluded that the limitations period was not tolled by
either statutory provision or the doctrine of equitable tolling.
In his objection, petitioner asserts his ability to file the petition was impeded by state

action and that the tolling provision in § 2244(d)(1)(B) therefore applies. He claims he
has been housed in a private prison which limits his law library access to three hours per
week, that the law library is too small, it lacks necessary research materials and typewriters,
and it is too far from a bathroom. However, § 2244(d)(1)(B) is directed to state-imposed
impediments that violate the U.S. Constitution or laws, and the conditions alleged here do
not rise to that level. Petitioner has not attempted to show how these deficiencies hindered
his ability to file a petition for more than four years after his conviction became final, which
is necessary to show he was deprived of meaningful access to the courts. Lewis v. Casey,
518 U.S. 343, 350–51 (1996). Similarly, for equitable tolling to apply, petitioner must
show he has diligently pursued his claim, but was prevented from timely filing by
extraordinary circumstances beyond his control. Marsh v. Soares, 223 F.3d 1217, 1220
(10th Cir. 2000). No such showing has been made.
Accordingly, the court ADOPTS the Report and Recommendation [Doc. #8], a
copy of which is attached to this order. The Petition for Writ of Habeas Corpus [Doc. #1]
is DISMISSED as untimely. The court concludes that jurists of reason would not find
this procedural issue debatable, and DENIES issuance of a Certificate of Appealability.
IT IS SO ORDERED.
Dated this 7th day of April, 2017.

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