Petties v. Crow

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ANTHONY PETTIES, )

)

Petitioner, )

)

v. ) Case No. CIV-22-431-SLP

)

CARRIE BRIDGES,1 )

)

Respondent. )

O R D E R

In this habeas corpus action brought pursuant to 28 U.S.C. § 2254, Petitioner,

appearing pro se, challenges his state-court conviction in Case No. CF-1992-1956, District

Court of Oklahoma County, State of Oklahoma. Pursuant to 28 U.S.C. § 636(b)(1)(B) and

(C), this matter was referred for initial proceedings to United States Magistrate Judge Shon

Erwin. Judge Erwin entered a Report and Recommendation [Doc. No. 9], in which he

recommended dismissing the Petition on the grounds that it is untimely.

Petitioner filed a timely objection to the R. & R. See [Doc. No. 12]. The Court,

therefore, must 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).

Review of all other issues addressed by Judge Erwin are waived. See Moore v. United

1 The appropriate respondent in a habeas action is the inmate’s custodian. See Rumsfeld v. Padilla,

542 U.S. 426, 443 (2004). Pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases and

Federal Rules of Civil Procedure 25(d) and 81(a)(4), Carrie Bridges, current warden at Petitioner’s

location of incarceration, is substituted as Respondent.

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).

Petitioner was convicted of second-degree murder in Oklahoma County in 1993.

His Petition asserts three grounds for relief, all of which challenge the trial court’s

jurisdiction over his criminal case. Judge Erwin recommends dismissal because

Petitioner’s claims are untimely, and he is not entitled to statutory tolling, equitable tolling,

or the actual innocence exception. Petitioner’s Objection simply re-urges the jurisdictional

argument that Judge Erwin previously rejected. Petitioner does not address any portion of

Judge Erwin’s R. & R. with specificity.2

Nevertheless, upon de novo review, the Court concurs with the analysis in the R. &

R. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), state prisoners

must generally file an application for a writ of habeas corpus within one year of “the date

on which the judgment became final.” 28 U.S.C. § 2244(d)(1)(A). Because Petitioner’s

“conviction[] became final prior to April 24, 1996, the limitations period commenced on

April 24, 1996, and expired one year later.” Takemire v. Novak, 57 F. App’x 385, 387

(10th Cir. 2003) (citing Hoggro v. Boone, 150 F.3d 1223, 1225–26 (10th Cir. 1998)). The

Petition, therefore, was filed over 25 years after AEDPA’s statute of limitations expired.

It is unclear whether Petitioner is arguing the Petition is timely under

§ 2244(d)(1)(C). See [Doc. No. 1] at 8. This subsection permits a state prisoner to file a

2 In his Objection, Petitioner claims that “the previous law clerk of the penitentiary [] lost or

misplaced [Judge Erwin’s] recommendation” [Doc. No. 12] at 1. But at no point before filing his

Objection did Petitioner request an additional copy of Judge Erwin’s R. & R. from the Court.

petition for habeas corpus within one year from “the date on which the constitutional right

asserted was initially recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on collateral

review.” But it is clear that “McGirt did not announce a new constitutional right,” so

§ 2244(d)(1)(C) is inapplicable. Pacheco v. Habti, 62 F.4th 1233, 1237 (10th Cir. 2023).

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 9]

is ADOPTED and the Petition [Doc. No. 1] is DISMISSED WITH PREJUDICE.3 A

separate Judgment of Dismissal shall be entered contemporaneously with this Order.

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

3 A dismissal on grounds the Petition is untimely should be with prejudice. Taylor v. Martin, 757

F.3d 1122, 1123 (10th Cir. 2014) (denying COA and dismissing appeal of § 2254 habeas petition

dismissed with prejudice as untimely under § 2244(d)); see also Davis v. Miller, 571 F.3d 1058,

1061 n. 2 (10th Cir. 2009) (recognizing that dismissal under Fed. R. Civ. P. 41(b) of § 2254 habeas

petition without prejudice was “tantamount to a dismissal with prejudice because the one-year

statute of limitations bars [petitioner] from refiling his [habeas] petition”); Brown v. Roberts, 177

F. App’x 774, 778 (10th Cir. 2006) (“Dismissal of a [§ 2254 habeas] petition as time barred

operates as a dismissal with prejudice . . . .”).

reasonable jurists would not debate the correctness of the Court’s determination. The Court

therefore denies a COA.

IT IS SO ORDERED this 15" day of August, 2024.

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE