United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN United Slates District Judge
William Grayson, a state prisoner appearing pro se,
brings this action under 28 U.S.C. § 2254, seeking a
writ of habeas corpus. He challenges the constitutional
validity of the judgments and sentences entered against him
in the District Court of Tulsa County, Nos. CF-2007-4688 and
CF-2007-4878. Respondent moves to dismiss the petition for
writ of habeas corpus as time-barred under 28 U.S.C. §
2244(d)(1)'s one-year statute of limitations. For the
reasons that follow, the Court grants Respondent's motion
and dismisses the petition, with prejudice, as time-barred.
April 3, 2008, Petitioner, represented by counsel, pleaded
guilty in the District Court of Tulsa County, to two counts
of robbery with a firearm, in violation of Okla. Stat. tit.
21, § 801 (2001) (No. CF-2007-4688), and one count of
first-degree robbery, in violation of Okla. Stat. tit. 21,
§ 798 (2001) (No. CF-2007-4878). Dkt. 1, at 1; Dkt. 12-1
(Plea of Guilty Summary of Facts); Dkt. 12-2, at 1, 5, 9
(Judgment and Sentence). After accepting his guilty plea, the
trial court imposed three 20-year prison sentences, ordered
the sentences to be served concurrently, and advised
Petitioner of his appeal rights. Dkt. 12-1, at 4-6, 11-13.
Petitioner did not move to withdraw his guilty plea within 10
days of sentencing or appeal his convictions. Dkt. 1, at 2;
Dkt. 12, at 3.
March 12, 2009, Petitioner filed a motion for judicial review
in each of his cases. Dkt. 12, at 15; Dkt. 12-17, at 17. The
state district court denied Petitioner's motions on March
13, 2009, and on March 16, 2009. Dkt. 12-7, at 18; see
also Docket Sheets, State v. Grayson, District
Court of Tulsa County, Nos. CF-2007-4688 & CF-2007-4878,
http://www.oscn.net/dockets (last visited May 21, 2019).
filed an application for post-conviction relief in state
district court on September 10, 2010, seeking an appeal out
of time and alleging plea counsel provided ineffective
assistance before, during, and after Petitioner entered his
guilty plea. Dkt. 12-3. Petitioner specifically alleged that
he “confronted” counsel “on or about the
14th day of April 2008, ” regarding counsel's
deficient performance and “begged” counsel to
withdraw his plea, but counsel refused. Id. at 6. On
November 8, 2010, the state district court denied
Petitioner's application and his request for an appeal
out of time. Dkt. 12-4. Petitioner did not file a
March 3, 2015, Petitioner filed several motions, including a
“motion to withdraw plea out of time or motion for
permission to appeal out of time, ” and second
application for post-conviction relief. Dkts. 12-5 &
12-6. Petitioner alleged, inter alia, that he
received ineffective assistance of counsel. Dkt. 12-6, at 3.
The state district court denied Petitioner's motion to
appeal out of time on August 16, 2015, and denied
Petitioner's second application for post-conviction
relief on September 21, 2015. Dkt. 12-7; Docket Sheet,
State v. Grayson, District Court of Tulsa County,
No. CF-2007-4688, http://www.oscn.net/dockets (last visited
May 21, 2019). Petitioner did not file a post-conviction
one year later, on November 4, 2016, Petitioner filed a third
application for post-conviction relief. Dkt. 12-8. Again,
Petitioner sought an appeal out of time, alleging plea
counsel's ineffectiveness rendered his plea invalid and
deprived him of a direct appeal. Id. The state
district court denied Petitioner's third application on
February 6, 2017. Dkt. 12-10. Petitioner filed a
post-conviction appeal. Dkt. 12-11, at 4. The Oklahoma Court
of Criminal Appeals (OCCA) declined jurisdiction and
dismissed the appeal on April 10, 2017, citing
Petitioner's failure to comply with court rules for
perfecting the appeal. Id.
filed a fourth application for post-conviction relief on June
2, 2017. Dkt. 12-12. Petitioner once again requested leave to
appeal out of time, alleging plea counsel deprived him of his
right to appeal by failing to consult with him about
withdrawing his guilty plea and filing an appeal.
Id. The state district court denied Petitioner's
fourth application on November 7, 2017. Dkt. 12-13.
Petitioner properly perfected a post- conviction appeal from
the denial of his fourth application, and the OCCA affirmed
that denial by order filed April 3, 2018. Dkt. 12-14.
filed the instant federal habeas petition (Dkt. 1), a
supporting brief (Dkt. 2), and several exhibits (Dkt. 3) on
July 25, 2018. Though not entirely clear, Petitioner appears
to identify three habeas claims: (1) the OCCA
“committed fundamental error in failing to find that
because of counsel's ineffectiveness, Petitioner was
denied his right to timely withdraw his plea of guilt within
the ten day allotment through no fault of his” own, (2)
the OCCA “committed fundamental error when it failed to
uphold its own rules of the court and remand Petitioner's
case back to district court for an evidentiary hearing,
” and (3) the OCCA “committed fundamental error
when they failed to uphold their own mandates.” Dkt. 2,
at 6, 10, 15. Petitioner seeks an evidentiary hearing on
these issues. Dkt. 1, at 15; Dkt. 2, at 18.
response to the habeas petition, Respondent filed a motion to
dismiss the petition as time-barred by 28 U.S.C. §
2244(d)(1)'s one-year statute of limitations (Dkt. 11)
and a brief in support of the motion (Dkt. 12). Petitioner
did not file a response to the motion to dismiss.
The petition is untimely under 28 U.S.C. §
the one-year period for filing a federal habeas petition
commences on the date a state prisoner's convictions
became final at the conclusion of direct review. 28 U.S.C.
§ 2244(d)(1)(A). Because Petitioner's convictions
rest on guilty pleas, his only path to direct review was
through a certiorari appeal. Clayton v. Jones, 700
F.3d 435, 441 (10th Cir. 2012). Petitioner had 10 days from
the date of his sentencing hearing to file a motion to
withdraw his guilty plea and request an evidentiary hearing
if he intended to pursue a certiorari appeal. See
Id. (noting that, under Oklahoma law, an
“application to withdraw guilty plea and the
evidentiary hearing are both necessary and critical steps in
securing [a certiorari] appeal” (quoting Randall v.
State, 861 P.2d 314, 316 (Okla. Crim. App. 1993)); Okla.
Stat. tit. 22, § 1051; Rule 4.2(A), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,
App. (2019) (providing criminal defendant convicted on guilty
plea must move to withdraw guilty plea within 10 days of
sentencing if defendant intends to appeal). Because
Petitioner did not move to withdraw his guilty plea before
the 10-day period expired, his convictions became final on
April 13, 2008. Clayton, 700 ...