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Potter v. Bear

United States District Court, N.D. Oklahoma

February 16, 2017

ROY STEVEN POTTER, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          OPINION AND ORDER.

          JAMES H. PAYNE UNITED STATES DISTRICT JUDGE.

         This is 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.

         BACKGROUND

         In 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 the same.
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 strangulation.
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 recovered.
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).

         Based 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.

         Petitioner 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).

         On 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 No. ...


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