The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL EMMANUEL ISHMAN, )
)
Petitioner, )
)
v. ) Case No. CIV-23-11-PRW
)
COMANCHE COUNTY COURTHOUSE, )
)
Respondent. )
ORDER
This case comes before the Court on United States Magistrate Judge Gary M
Purcell’s Report & Recommendation (Dkt. 8), recommending that Petitioner’s 28 U.S.C.
§ 2254 petition be dismissed as untimely, and Petitioner Michael Emmanuel Ishman’s
Objection (Dkt. 13). Magistrate Judge Purcell concluded that Petitioner’s Antiterrorism
and Effective Death Penalty Act (AEDPA) one-year limitations period to file a § 2254
petition expired on June 13, 2022. And since Petitioner did not file this petition until
January 4, 2023, Magistrate Judge Purcell concluded that it was untimely and must be
dismissed. Petitioner’s objection takes issue with Magistrate Judge Purcell’s conclusion
that Petitioner is not entitled to equitable tolling of his AEDPA limitations period. In
support of this contention, Petitioner avers to general concerns related to prison life, as well
as a recent four-week period of segregation.
Upon review, the Court agrees with Magistrate Judge Purcell and concludes that
Petitioner’s petition must be dismissed as untimely. Petitioner’s objection does not dispute
Magistrate Judge Purcell’s conclusion that this petition was filed after the expiration of
AEDPA’s one-year limitations period.1 And the Court agrees with Magistrate Judge
Purcell that Petitioner is not entitled to equitable tolling. “Equitable tolling is a rare
remedy”2 that is “to be applied sparingly.”3 “In order to receive the benefit of equitable
tolling, [a habeas petitioner] must show . . . ‘that some extraordinary circumstance stood in
his way and prevented timely filing.’”4 General concerns are not enough; a habeas
petitioner has a “strong burden to show specific facts” that prevented him or her from
timely filing a petition.5
Petitioner’s objection does not demonstrate an extraordinary circumstance that
entitles him to equitable tolling. To begin, “general difficulties” related to pursuing legal
action from prison are insufficient to demonstrate an extraordinary circumstance justifying
equitable tolling.6 The mere fact of proceeding pro se is not extraordinary, nor are
generalized difficulties with accessing legal materials or working under prison conditions.7
Petitioner’s most specific factual averments relate to a period of segregated confinement,
1 To the extent that Petitioner has presented an adequate objection, the Court has reviewed
Magistrate Judge Purcell’s analysis de novo and agrees with Magistrate Judge Purcell’s
AEDPA period calculations.
2 Wallace v. Kato, 549 U.S. 384, 396 (2007).
3 Nat’l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
4 Porter v. Allbaugh, 672 F. App’x 851, 856 (10th Cir. 2016) (quoting Holland v. Florida,
560 U.S. 631, 649 (2010)).
5 Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512
F.3d 1304, 1307 (11th Cir. 2008)).
6 Porter, 672 F. App’x at 857.
7 Id.; see Objection (Dkt. 13), at 6.
apparently ongoing for four weeks at the time the petition was filed. But even if this Court
were to consider that particular circumstance “extraordinary,” it alone falls far short of
justifying the preceding five-months’ delay. Petitioner has failed to identify any
circumstance unique or specific to his situation that prevented him from filing a timely
petition. Because his general concerns related to access to legal materials are insufficient,
Petitioner has not demonstrated an extraordinary circumstance entitling him to equitable
tolling. Absent equitable tolling, Petitioner’s petition was untimely and must be dismissed.
Accordingly, the Court hereby ADOPTS the Report & Recommendation (Dkt. 8)
and DISMISSES the Petition (Dkt. 1) with prejudice.®
IT IS SO ORDERED this 16th day of June, 2023.
PATRICK R. WYRICK
UNITED STATES DISTRICT JUDGE
Before a habeas petitioner may appeal the dismissal of a section 2254 petition, he must
obtain a Certificate of Appealability (COA). See Vreeland v. Zupan, 906 F.3d 866, 875
(10th Cir. 2018) (citing 28 U.S.C. § 2253(c)(1)(A)). A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” § 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 1t 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 showing is not met in this
case. Therefore, a COA is DENIED.