Summary
taking judicial notice of the public records of the District Court of Comanche County available on the Internet
Summary of this case from In re MartinOpinion
Case No. CIV-09-1078-F.
December 17, 2009
ORDER
United States Magistrate Judge Gary M. Purcell issued a Supplemental Report and Recommendation on November 20, 2009, wherein he recommended that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed on the ground that it was not timely filed under 28 U.S.C. § 2244(d)(1).
Presently before the court is petitioner's Objection to Supplemental Report and Recommendation filed December 1, 2009. Pursuant to 28 U.S.C. § 636(b)(1), the court has conducted a de novo review of the matter. Having done so, the court concurs with the analysis and recommendation of Magistrate Judge Purcell. In his objection, petitioner specifically sets forth reasons as to why the one-year limitation period prescribed in § 2244(d)(1) should be subject to equitable tolling. See, Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (holding that the limitation period imposed by § 2244 is not jurisdictional but rather is subject to equitable tolling), cert denied, 525 U.S. 891 (1998). The court concludes, however, that the reasons provided by petitioner do not constitute extraordinary circumstances compelling equitable tolling of the one-year limitation period. The court additionally finds that petitioner has not shown that he pursued his rights diligently. See, Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (equitable tolling is only available when an inmate pursues his claims diligently and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control). The court therefore concludes that petitioner is not entitled to equitable tolling, and his petition, as found by Magistrate Judge Purcell, should be dismissed on the ground that it is not timely filed under 28 U.S.C. § 2244(d)(1). The court accepts, adopts and affirms the Supplemental Report and Recommendation in its entirety.
Accordingly, the Supplemental Report and Recommendation of United States Magistrate Judge Gary M. Purcell, issued on November 20, 2009 (doc. no. 15), is ACCEPTED, ADOPTED and AFFIRMED. Petitioner's "Petition for Writ of Habeas Corpus, Pursuant to 28 U.S.C. § 2254 Person in State Custody" is DISMISSED as untimely filed under 28 U.S.C. § 2244(d)(1).