United States District Court, N.D. Oklahoma
OPINION AND ORDER.
H. PAYNE UNITED STATES DISTRICT JUDGE.
a 28 U.S.C. § 2254 habeas corpus action. Petitioner is a
state inmate and appears pro se. In response to the petition
(Dkt. # 1), Respondent filed a motion to dismiss petition for
habeas corpus as time barred by the statute of limitations
(Dkt. # 11). Petitioner filed a response to the motion (Dkt.
# 13). For the reasons discussed below, the Court finds that
the petition was not timely filed. Therefore,
Respondent's motion to dismiss shall be granted and the
petition shall be dismissed with prejudice.
resolving Petitioner's claims raised on direct appeal,
the Oklahoma Court of Criminal Appeals (OCCA) provided a
summary of facts. See Dkt. # 12-2. Petitioner fails
to rebut the OCCA's statement of facts with clear and
convincing evidence and it is presumed correct. See
28 U.S.C. § 2254(e)(1). Therefore, this Court adopts the
following factual summary as its own:
In August of 1987, Appellant and his best friend, [Shawn
Allen] Alicea, stopped in Tulsa on their way from California
to Florida. Alicea had friends in town that the two decided
to visit. Soon after arriving in Tulsa, the two men began
frequenting the Elite Bookstore. The bookstore was a
congregation point for homosexuals and many men gathered
there each evening. There was testimony by other patrons of
the store that Appellant and Alicea were prostituting
themselves, attempting to pick up other men for money,
although both men denied the allegations.
. . . .
Alicea testified that . . . the victim in this case, Darrell
Keys, was driving around the parking lot. Another witness,
Marion Clifton, who attempted to keep a watch on the
bookstore, testified that he had previously seen Keys at the
bookstore, although it was infrequently.
Keys was driving a 1986 maroon Chevy Nova with dark tinted
windows. Appellant flagged Keys and Keys pulled over. After
Appellant spoke to Keys for a minute, Appellant and Alicea
got into the car and went driving. Clifton testified that
although he saw Appellant and Alicea arrive that night, they
must have left in a car because if they had walked away from
the area, he would have noticed. Appellant contended at trial
that only Alicea had gone with Keys. He told police officers
that Clifton would testify that he had remained at the
bookstore all night, however, Clifton testified otherwise.
Eventually, the three men, Appellant, Alicea and Keys, went
to the motel room [where Petitioner and Alicea had been
staying]. Alicea testified that they drank the rest of the
beer and played strip poker. Keys soon lost all his clothes
and the other two took theirs off as well. Keys began
performing oral sodomy on Alicea. Appellant then requested
Keys was lying on his back with Appellant straddled across
his chest. Appellant held Keys' head in the proper
position with a bandanna behind his neck. Alicea felt sick
and got up to go to the bathroom. When he returned, Appellant
had the bandanna around Keys' neck and was choking him.
The medical examiner testified that the cause of death was
Appellant and Alicea attempted to clean up the room before
they left in Keys' car. Appellant's fingerprints were
identified on several beer cans. Due to some sort of
mismanagement by the police, no other forensic evidence was
The two men left Tulsa in Keys' car and drove all night
until they reached Ocala, Florida. They stopped at a
restaurant and left without paying the bill. The restaurant
manger was able to obtain the license tag number and the
police determined that the car belonged to Keys. The two were
apprehended in Daytona Beach on August 16. Evidence was
presented that the two had attempted to sell the Nova a short
time before the arrest.
(Dkt. # 12-2 at 3-5).
on those events, Petitioner was charged in Tulsa County
District Court, Case Nos. CRF-87-3075 and CRF-87-3375, with
Larceny of an Automobile and First Degree Murder,
respectively. Petitioner proceeded to be tried by a jury.
Evidence presented at trial included the testimony of Alicea
and Alvin Saulmon, a jailhouse informant who shared a cell
with Petitioner at the Tulsa County Jail. The OCCA summarized
Saulmon's testimony, as follows:
While [celled] together, Appellant told Saulmon the
circumstances of the crime in great detail. Appellant told
Saulmon that he, Alicea and Keys had gone to the Best Budget
Motel where they played a drinking game called
“quarters” and strip poker. Following the games,
the three men began to have sex with each other. Saulmon
testified, as did Alicea, that the murder occurred while
Appellant was straddling Keys and supporting his head with a
bandanna to better facilitate oral sex. Appellant told
Saulmon that Keys did not perform well which angered him to
the point that he strangled Keys. Saulmon also testified that
Appellant told him that Alicea was throwing up in the
bathroom while the strangulation occurred. Appellant
described Keys' face during and after the strangulation
to Saulmon in great detail.
(Dkt. # 12-2 at 6-7). At the conclusion of trial, the jury
found Petitioner guilty as charged. On June 6, 1988,
Petitioner was sentenced, in accordance with the jury's
recommendation, to twenty (20) years imprisonment for the
Larceny of an Automobile conviction and to life imprisonment
for the First Degree Murder conviction. Attorneys Ed Morrison
and Robert J. Walpole represented Petitioner at trial.
See Dkt. # 12-15 at 1.
perfected a direct appeal to the OCCA. On appeal, Petitioner
was represented by attorney Allen Smith. See Dkt. #
12-1 at 1. In an unpublished opinion, filed June 18, 1992, in
Case Nos. F-88-1016 and F-88-1017, the OCCA affirmed the
judgment and sentence of the trial court (Dkt. # 12-2).
December 1, 1993, Petitioner filed an application for
post-conviction relief (Dkt. # 12-3). The state district
judge denied the application on December 14, 1993 (Dkt. #
12-4). Petitioner appealed and, on February 8, 1994, in Case