Young v. Bear
ORDER ADOPTING REPORT AND RECOMMENDATION for 8 Report and Recommendation, Petitioners objections to the Report are DENIED, and the Report and Recommendation of the magistrate judge is ACCEPTED, ADOPTED and AFFIRMED. The petition for habeas relief is DISMISSED as untimely. Acertificate of appealability is DENIED. Signed by Honorable Stephen P. Friot on 5/18/17. (kr)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MERLE BRANT YOUNG,
-vsCARL BEAR, Warden,
Case No. CIV-17-0021-F
In this action, petitioner, a state prisoner appearing pro se whose pleadings
are liberally construed, seeks habeas relief from a state court conviction under 28
U.S.C. § 2254. On February 22, 2017, Magistrate Judge Shon T. Erwin entered a
Report and Recommendation (doc. no. 8, “Report”) recommending this action be
dismissed on filing as untimely.
Petitioner objected to the Report. Doc. no. 9. Among other things, he argues
that he was entitled to equitable tolling; that the court should order the respondent to
produce records; that he is disabled and has been denied legal assistance; and that
contrary to the “Procedural Background” portion of the Report, petitioner did seek
to withdraw his plea.
Given the breadth of petitioner’s objections, the court
construes them as objecting to the entirety of the Report.
Petitioner’s objections do not show that he is entitled to equitable tolling, or
that he has any other basis for avoiding dismissal of this action as untimely.
Moreover, contrary to petitioner’s contention that he sought to withdraw his guilty
plea in the Stephens County case, he did not do so.1
After careful consideration, the court finds that the Report should be adopted
in its entirety. Given the thoroughness of the analysis set out in the Report, no
purpose would be served by any additional analysis here.
Petitioner’s objections to the Report are DENIED, and the Report and
Recommendation of the magistrate judge is ACCEPTED, ADOPTED and
AFFIRMED. The petition for habeas relief is DISMISSED as untimely.
Movant (petitioner) 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
See, public records available at http://www1.odcr.com for Stephens County, Oklahoma,
regarding State of Oklahoma v. Merle Brant Young, CF-2007-00142.
correct in its procedural ruling.” Id. Petitioner has not made the requisite showing,
and a certificate of appealability is DENIED.
IT IS SO ORDERED this 18th day of May, 2017.
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