Hayes v. Bear

Filing 11

ORDER adopting Report and Recommendations and Denying Certificate of Appealability re 9 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 6/12/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LEROY HAYES,
Petitioner,
v.
WARDEN BEAR,
Respondent.

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Case No. CIV-18-391-D

ORDER
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 9] issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Upon preliminary review of the Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2254, Judge Mitchell finds that it is untimely under 28 U.S.C.
§ 2244(d)(1), and recommends summary dismissal.
filed a timely Objection [Doc. No. 10].

Petitioner, who appears pro se, has

Thus, the Court must make a de novo

determination of the portions of the Report to which a specific objection is made, and may
accept, reject, or modify the recommended decision, in whole or in part.

See 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b)(3).
Petitioner seeks to challenge convictions and sentences imposed by the District
Court of Oklahoma County, Oklahoma, on April 11, 1996, upon his pleas of guilty and no
contest to multiple crimes. Petitioner filed this action for federal habeas corpus relief on
April 19, 2018, asserting claims that his sentences have been discharged by operation of
state legislative action, that state courts lacked jurisdiction because his “crime was

committed by an Indian, on an Indian, in Indian country,” and that the state court failed to
inform him of federal constitutional rights and obtain a waiver, particularly of a “right to a
grand jury indictment.”

See Pet. [Doc. No. 1] at 8, 9 (ECF page numbering).

Based on

the procedural history of Petitioner’s state court case, Judge Mitchell finds that the oneyear period to file a federal habeas petition, as provided by 28 U.S.C. § 2244(d)(1)(A),
expired no later than July 2, 1997.

Judge Mitchell further finds that Petitioner alleges no

basis for statutory or equitable tolling or a finding of actual innocence.

Judge Mitchell

therefore concludes that the Petition should be dismissed upon filing as time-barred.
Liberally construing the arguments in Petitioner’s Objection, the Court finds that
Petitioner challenges Judge Mitchell’s findings that all claims are governed by the time
limit of § 2244(d)(1)(A) and that there is no basis for equitable tolling. 1
other issues addressed by Judge Mitchell is waived.

Review of all

See Moore v. United States, 950 F.2d

656, 659 (10th Cir. 1991); see also United States v. 2121 E. 30th St., 73 F.3d 1057, 1060
(10th Cir. 1996).
First, Petitioner argues that the one-year time limit did not begin to run when his
convictions became final because other provisions of § 2244(d)(1) apply.

He contends

that a state impediment to filing – lack of access to a law library or legal assistance – existed
until 2017 when he obtained help from another inmate and, therefore, his Petition is timely

1

Petitioner also seems to argue that his nolo contendere plea did not become final when it
was entered, and he expressly argues that a criminal judgment does not become final until a postconviction application is filed and state court remedies are exhausted. See Obj. [Doc. No. 10]
at 1. Petitioner provides no legal authority for these contentions, and the Court is aware of none.
Statutory tolling would apply if a post-conviction application were timely filed, which is not the
case here. See R&R at 9 & n.7.
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under § 2244(d)(1)(B).

See Obj. [Doc. No. 10] at 1. He also alleges that unspecified

“mental and physical disabilities” prevented him from pursuing relief without legal
assistance.

Id.

Under subsection 2244(d)(1)(B), the limitation period runs from “the

date on which the impediment to filing an application created by State action in violation
of the Constitution or laws of the United States is removed, if the applicant was prevented
from filing by such State action.”

Plaintiff makes no factual allegations that would satisfy

this provision.
Petitioner also invokes subsection 2244(d)(1)(D), under which the one-year time
limit runs from “the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.”
claims are based on newly-discovered facts. 2

None of Petitioner’s

Therefore, the Court finds that Petitioner

has not shown that the limitation period of either (d)(1)(B) or (d)(1)(D) applies.
Second, Petitioner asserts that he is entitled to equitable tolling because he has been
pursuing his rights diligently “to the best of his disability” and, during some time period,
“state impediments . . . ‘stood in his way.’”
refers to unidentified disabilities.

Id.

See Obj. at 2.

As noted above, Petitioner

Petitioner does not explain how these disabilities

or impediments prevented him from filing a timely habeas petition.

Petitioner alleges no

facts to show “that he has been pursuing his rights diligently” or “that some extraordinary

2

Petitioner identifies the date of discovery as August 8, 2017, which is the date that the
court of appeals issued its initial decision Murphy v. Royal, 866 F.3d 1164, 1189-90 (10th Cir.),
modified on denial of reh’g en banc, 875 F.3d 896 (10th Cir. 2017), cert. granted, No. 17-1107,
2018 WL 74674 (May 21, 2018). Murphy provides the legal, not factual, predicate of one of
Petitioner’s claims. New legal developments are covered by subsection 2244(d)(1)(C), which
does not apply here. See R&R at 6.
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circumstance stood in his way.”

See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see

also Holland v. Florida, 560 U.S. 631, 649 (2010).

Therefore, the Court finds that

Petitioner has failed to allege sufficient facts to support equitable tolling of the limitation
period.
For these reasons, upon de novo consideration of the issues presented by Petitioner’s
Objection, the Court fully concurs in Judge Mitchell’s finding that the Petition is timebarred.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 9]
is ADOPTED in its entirety. The Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2254 is DISMISSED with prejudice.

Judgment shall be entered accordingly.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner.

A COA may issue only if Petitioner

“has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2). “When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, 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 correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration, the Court finds the
requisite standard is not met in this case.

Therefore, a COA is DENIED.

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IT IS SO ORDERED this 12th day of June, 2018.

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