Proctor v. Whitten
ORDER ADOPTING REPORT AND RECOMMENDATION 8 , Denying 16 the motion for court-appointed counsel, Dismissing the Petition as untimely filed and finding a certificate of appealability should not issue (as more fully set out). Signed by Honorable Patrick R Wyrick on 2/16/2021. (ks)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ERIC LEE PROCTOR,
Case No. CIV-19-837-PRW
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner Eric Lee Proctor, a state inmate appearing pro se, seeks habeas relief
under 28 U.S.C. § 2254. The matter was referred to Magistrate Judge Gary Purcell
for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). The
Magistrate Judge recommends that the petition be dismissed as untimely, and gave
Petitioner until October 10, 2019, to file objections to the Report and
Recommendation (Dkt. 8).
Petitioner timely objected (Dkt. 9), and then filed a flurry of other motions
and documents. First came a notice attempting to supplement one of his objections
(Dkt. 10), then a motion to stay the case (Dkt. 11) that was quickly followed by a
motion to withdraw that motion to stay (Dkt. 12), then a motion for court-appointed
counsel (Dkt. 16), and finally two more supplements to his objections (Dkt. 15 and
Case 5:19-cv-00837-PRW Document 18 Filed 02/16/21 Page 2 of 5
Petitioner did not ask for permission to supplement his objections to the
Report and Recommendation. This is problematic for the obvious timeliness reason,
but also because his first supplement (Dkt. 10) includes an “objection” that purports
to raise actual innocence and ineffective assistance of counsel claims not included
in the Petition (Dkt. 1). However, claims “raised for the first time in objections to
the magistrate judge's report are deemed waived,” 1 and Petitioner has not
demonstrated that he qualifies for any of the exceptions from this firm waiver rule:
that the court failed to inform him of the time period for objecting and the
consequences of failing to object, that the interests of justice warrant review, or plain
error.2 With regard to the other supplements to his objections, the Court will just say
this: while Petitioner should have asked for permission to supplement his objections,
the Court has considered all arguments Petitioner makes in support of those
objections in reviewing the objected-to portions of the Report and Recommendation
de novo. As explained more fully below, none of Petitioners arguments has merit.
The Magistrate Judge has recommended that the petition be dismissed as
untimely. This is so because Petitioner seeks habeas relief on the grounds that his
sentence violates the Eighth and Fourteenth Amendments, based on the holdings of
United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir.2001).
Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008); Wardell v.
Duncan, 470 F.3d 954, 958 (10th Cir.2006).
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the Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012) and Graham v.
Florida, 560 U.S. 48 (2010). Because Petitioner’s crime was not a homicide,
Graham v. Florida is the case that established the constitutional principle that
Petitioner invokes in an attempt to invalidate his sentence. But Graham v. Florida
was decided on May 17, 2010, yet Petitioner did not file this habeas action until
September 10, 2019. Because 28 U.S.C. § 2241(d)(1)(C) requires Petitioner to have
brought his Graham-based claim within one year of May 18, 2010, the Magistrate
Judge concluded that the case was untimely. The Magistrate Judge went on to
consider whether the one-year statute of limitations could be tolled by 28 U.S.C. §
2244(d)(2), which allows for tolling while a properly filed application for state postconviction relief is pending, but concluded that it could not, because Petitioner’s
state petition for post-conviction relief was also untimely. The Magistrate Judge next
considered whether the statute of limitations should be equitably tolled, but
concluded that such tolling was not warranted under the circumstances.
Petitioner objects that the Magistrate Judge misunderstands 28 U.S.C. §
2241(d)(1)(C)’s statute of limitation, and points to the Supreme Court’s decision in
Dodd v. United States, 545 U.S. 353 (2005) in support--a decision he says the
Magistrate Judge grossly misinterpreted. The problem with all this is that Dodd
couldn’t be more against Petitioner, and the Magistrate Judge correctly applied
Dodd. Petitioner selectively quotes from Dodd and willfully ignores the plain as day
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holding of the case, which is that 28 U.S.C. § 2241(d)(1)(C)’s one year statute of
limitation begins running when the Supreme Court recognizes a new constitutional
right, even if the Supreme Court hasn’t yet made that right retroactive.
Petitioner does not object to the Magistrate Judge’s conclusion that the statute
of limitations cannot be statutorily tolled, but does object to the conclusion that it
should be equitable tolled. But this argument too is premised on Petitioner’s
mistaken understanding of when his statute of limitations began to run. Because he
mistakenly believes that his statute of limitations did not begin to run until the
Supreme Court decided Montgomery v. Louisiana, 577 U.S. _____ (2016), he argues
that his petition was just barely late, and attributes that lateness to his former attorney
who told him his petition was time-barred and that she accordingly couldn’t in good
faith file it for him. 3 But as explained above, the statute of limitations began to run
in 2010, not 2016, so his state petition was years late, his subsequent federal petition
was also years late, and the alleged 14 day delay in filing his federal petition that he
blames on his attorney is entirely beside the point because it makes no difference—
his petition was already years late. Petitioner also argues that the statute of
limitations should be tolled because he is actually innocent, but none of his evidence
demonstrates that he has a colorable claim of actual innocence.4 In short, the Court
Dkt. 9-1, Affidavit of Laura Deskin.
In support of his actual innocence argument in support of equitable tolling,
Petitioner attaches two affidavits that he claims are from his victims (Dkt. 9-3,
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agrees entirely with the Magistrate Judge’s reasoning and conclusions with regard
to equitable tolling.
Accordingly, the Court:
DENIES the Motion for Court-Appointed Counsel (Dkt. 16)
because no evidentiary hearing is warranted,
ADOPTS the Report and Recommendation (Dkt. 8) issued by
the Magistrate Judge on September 9, 2019,
DISMISSES the Petition as untimely filed,
FINDS that a certificate of appealability should not issue, and
ORDERS that judgment issue forthwith.
IT IS SO ORDERED this 16th day of February, 2021.
Affidavits of Kathy Diggs and Debra Hayes). Assuming that is true—and
overlooking the fact that the affidavits appear to have been written by the same
person—even taken at face value, the affidavits provide nothing no actual evidence
of Petitioner’s innocence, just a vague allusion to “tainted testimony.” Moreover,
one of the alleged victim’s statement that she “forgives” Petitioner, suggests guilt,
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