Thompson v. Dowling

Filing 11

ORDER ADOPTING 9 Report and Recommendation. 1 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is summarily DISMISSED as time-barred. 1 Motion for Appointment of Counsel filed by Michael Alexander Thompson and 3 Motion to Certify Question of Law to Oklahoma Supreme Court filed by Michael Alexander Thompson are DENIED as MOOT. A certificate of appealability is DENIED. Signed by Honorable Stephen P. Friot on 10/4/2017. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL ALEXANDER
THOMPSON,
Petitioner,
-vsJANET DOWLING, Warden,
Respondent.

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Case No. CIV-17-758-F

ORDER
United States Magistrate Judge Suzanne Mitchell has issued a Report and
Recommendation, recommending that petitioner’s petition under 28 U.S.C. § 2254
seeking habeas relief from a March 31, 2009 conviction and sentence be summarily
dismissed as time-barred. Doc. no. 9. Magistrate Judge Mitchell has also concluded
that the adoption of her recommendation would moot petitioner’s Motion for
Appointment of Counsel and his Motion to Certify Question of Law to Oklahoma
Supreme Court. Id.
Petitioner has objected to the Report and Recommendation. Pursuant to 28
U.S.C. § 636(b)(1), the court has conducted a de novo review of the matter. The
court concurs with Magistrate Judge Mitchell that petitioner’s action is time-barred.
The court finds that petitioner’s arguments to be without merit. The court concludes
that petitioner has failed to establish statutory tolling or equitable tolling of the
limitations period. Therefore, the court adopts the Report and Recommendation in
its entirety.

Rule 11 (a) of the Rules Governing Section 2254 Cases in the United States
District Courts requires the district court to either issue or deny a certificate of
appealability when it enters a final order adverse to the petitioner. Where, as here,
“the district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a [certificate of appealability] 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon review,
the court concludes that petitioner has not made the requisite showing. The court
thus finds that a certificate of appealability should be denied.
Accordingly, the Report and Recommendation issued by United States
Magistrate Judge Suzanne Mitchell (doc. no. 9), on September 1, 2017, is
ACCEPTED, ADOPTED and AFFIRMED.

Petitioner, Michael Alexander

Thompson’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a
Person in State Custody (doc. no. 1), is summarily DISMISSED as time-barred. In
light of the petition’s dismissal, petitioner’s Motion for Appointment of Counsel
(doc. no. 1, p. 17-18) and Motion to Certify Question of Law to Oklahoma Supreme
Court (doc. no. 3) are DENIED as MOOT. A certificate of appealability is
DENIED.
IT IS SO ORDERED this 4th day of October, 2017.

17-0758p002.docx

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