| Keyword |
Date: Filed /
UNITED STATES COURT OF APPEALS
|EDSEL RAY HILL,
||(D.C. No. 04-CV-1728-F)
|MIKE ADDISON, Warden; THE
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
||(W. D. Okla.)
Before EBEL, McKAY, and HENRY,
This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner was
convicted after a bench trial of first-degree murder and unlawful disposal of a
body. He was sentenced to life imprisonment without the possibility of parole
and five years' imprisonment. Petitioner then filed a § 2254 petition for habeas
corpus relief with the United States District Court for the Western District of
Oklahoma. In that petition, Petitioner argued for relief on the following grounds:
(1) failure of trial court to conduct a mental competency hearing; (2)
prosecutorial misconduct; (3) lack of a pretrial Daubert hearing as to the
testimony of certain witnesses, Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993); (4) ineffective assistance of trial counsel; and (5)
ineffective assistance of appellate counsel. In his report and recommendation
("R&R"), the magistrate judge recommended that the petition be denied as time-barred.
After considering Petitioner's objections and conducting a de novo
review of the petition, the district court found that Petitioner had not made a
sufficient showing to equitably toll AEDPA's one-year statute of limitations,
adopted the R&R, and dismissed the § 2254 petition as untimely. The district
court also declined to grant Petitioner a certificate of appealability. Petitioner
has renewed his request for a certificate of appealability with this court. The
issues he raises on appeal are identical to those brought before the district court.
In order for this court to grant a certificate of appealability, Petitioner must
make "a substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotations omitted). When a § 2254 petition is denied by
the district court for procedural reasons, as is the case here, Petitioner must clear
the added hurdle of showing "that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling." Id.
We have carefully reviewed Petitioner's brief, the district court's
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Petitioner's filing raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
magistrate judge's R&R, which the district court adopted in its April 27, 2005
Order, we cannot say that it is "debatable whether the district court was correct in
its procedural ruling." Id.
We DENY Petitioner's request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
| Keyword |
Date: Filed /
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