noting, with respect to equitable tolling, that “[a]n inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.” (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008))
How later courts described this case
- noting, with respect to equitable tolling, that “[a]n inmate bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.” (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008))
- rejecting similar argument and holding that claim that trial court lacked jurisdiction “is subject to dismissal for untimeliness”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LARRY D. CECIL, )
)
Petitioner, )
)
v. ) Case No. CIV-22-3-SLP
)
SCOTT NUNN, )
)
Respondent. )
O R D E R
Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), this matter was referred for initial
proceedings to United States Magistrate Judge Gary M. Purcell, who issued a Report and
Recommendation on January 13, 2022 [Doc. No. 10]. Judge Purcell recommended
dismissing the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody [Doc. No. 1] without prejudice as untimely. Petitioner timely filed an
objection to the R. & R. [Doc. No. 11]. The Court, therefore, will make a de novo
determination of the portions of the R. & R. to which specific objections have been made.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Judge Purcell found the petition untimely under 28 U.S.C. § 2244(d)(1)(A) and that,
although Petitioner suggested facts implicating § 2244(d)(1)(C), the subsection was
inapplicable because McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) did not recognize a new
constitutional right. Additionally, Judge Purcell found that statutory tolling under
§ 2244(d)(2) and equitable tolling did not apply.
The Court concurs with the analysis in the R. & R. and adopts the same. Although
the arguments in Petitioner’s objection are not abundantly clear, the Court finds that to the
extent Petitioner challenges the R. & R.’s timeliness analysis, his arguments are without
merit. Petitioner’s assertion that subject matter jurisdiction is not waivable does not render
his petition timely. See Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011) (rejecting
similar argument and holding that claim that trial court lacked jurisdiction “is subject to
dismissal for untimeliness”); Davis v. Nunn, No. CIV-21-1028-SLP, 2022 WL 1618534,
at *2 (W.D. Okla. May 23, 2022) (holding that argument that “AEDPA’s statute of
limitations does not apply because the state court lacked jurisdiction. . . . is without merit
and has been rejected on numerous occasions by district courts within the Tenth Circuit.”).
And, as Judge Purcell found, McGirt did not establish any new constitutional claim, so
§ 2244(d)(1)(C) does not apply. Id. at *1 (collecting cases).
Petitioner submitted six other filings after the objection deadline. See Doc. Nos. 12-
17. To the extent these filings can be construed as further objections to the R. & R.,1 they
are untimely and otherwise do not convince the Court that the R. & R. is erroneous.
Although those filings contain bare assertions regarding equitable tolling and actual
innocence, Petitioner does not demonstrate that either apply here. See Kraus v.
Heimgartner, 681 F. App’x 679, 683 (10th Cir. 2017) (rejecting the petitioner’s “bare
assertions” of actual innocence and explaining that “a viable claim of actual innocence
requires a petitioner ‘to support his allegations of constitutional error with new reliable
1 For the most part, these filings fail to address the timeliness issue that is the basis for Judge
Purcell’s recommended dismissal.
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial.’” (quoting Schlup v. Delo,
513 U.S. 298, 324 (1995))); Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (noting,
with respect to equitable tolling, that “[a]n inmate bears a strong burden to show specific
facts to support his claim of extraordinary circumstances and due diligence.” (quoting
Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008))).2
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 9]
is ADOPTED and the Petition [Doc. No. 1] is DISMISSED WITHOUT PREJUDICE. A
separate 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 upon “a substantial
showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). When the
district court dismisses a habeas petition on procedural grounds, the petitioner must make
this showing by demonstrating both “[1] that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and [2] 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). The Court finds that
2 Petitioner mentions a general lack of “access to [l]egal help” because of COVID-19 and gang-
related issues and asserts only that he “has been diligently pursuing his Rights by getting this
Habeas Corpus Petition.” Doc. No. 14, at 10. But Petitioner “has provided no specificity regarding
the alleged lack of access and the steps he took to diligently pursue his federal claims.” Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998).
reasonable jurists would not debate the correctness of the Court’s determination regarding
timeliness. The Court therefore denies a COA.
IT IS SO ORDERED this 8" day of June, 2022.
SCOTT L. PALK
UNITED STATES DISTRICT JUDGE