United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
28, 2016, Petitioner, a state inmate appearing pro se, filed
a petition for writ of habeas corpus (Dkt. # 1) in the United
States District Court for the Eastern District of Oklahoma.
On July 5, 2016, the case was transferred to this Court (Dkt.
# 7). In response to the petition, Respondent filed a
“motion to dismiss petition for habeas corpus for
failure to timely file petition” (Dkt. # 10), along
with a supporting brief (Dkt. # 11). Petitioner filed a
“combined motion to suppliment [sic] origional [sic]
application and brief/response to motion to dismiss”
(Dkt. ## 15, 16). For the reasons discussed below,
Petitioner's motion to supplement shall be granted, the
motion to dismiss shall be granted, and the petition shall be
dismissed with prejudice as time barred.
challenges his convictions and sentences entered in Ottawa
County District Court, Case Nos. CF-2003-386B and
CF-2003-540. See Dkt. # 1 at 1. The record reflects
that on December 16, 2003, in Case No. CF-2003-386B,
Petitioner entered pleas of guilty to Manufacture of CDS
within 2000 ft of School (Count 1), Possession of CDS within
2000 ft of School or Park (Count 2), and Possession of
Paraphernalia (Count 3). See Dkt. # 11-14. The trial
judge accepted Petitioner's pleas and sentenced him that
day to twenty (20) years imprisonment, with all but the first
ten (10) years suspended, and a $50, 000 fine with $49, 000
suspended (Count 1); twenty (20) years imprisonment, with all
but the first ten (10) years suspended, and a $1, 000 fine
(Count 2); and a $100 fine (Count 3). See Dkt. #
11-19 at 13-14. The sentences were ordered to be served
concurrently. Id. On January 9, 2004, Petitioner
filed a motion to withdraw his pleas. See Dkt. #
11-14 at 5. By order filed January 15, 2004, the motion was
denied as untimely. Id. Petitioner did not perfect a
certiorari appeal to the Oklahoma Court of Criminal Appeals
(OCCA). See Dkt. # 11-2 at 1 n.1. Attorney Terry
Weber represented Petitioner during plea proceedings.
See Dkt. # 11-19 at 2.
April 7, 2004, in Case No. CF-2003-540, Petitioner entered a
plea of nolo contendere to Child Sexual Abuse. See Dkt.
# 11-15 at 5. The trial judge accepted Petitioner's plea
and sentenced him that day to fifteen (15) years imprisonment
with all but the first five (5) years suspended, to be served
concurrently with the sentences entered in Case No.
CF-2003-386B. See Dkt. # 11-20 at 12. During the
plea proceeding, the trial judge carefully explained the
provisions of the Oklahoma Sex Offenders Registration Act
(OSORA). Id. at 15-18. Petitioner averred that he
understood the registration requirements. Id.
Petitioner did not file a motion to withdraw his plea and did
not perfect a certiorari appeal in the OCCA. See
Dkt. ## 11-15, 11-2 at 1 n.1. Attorney Terry Weber
represented Petitioner during plea proceedings. See
Dkt. # 11-20 at 2.
October 4, 2004, Petitioner filed motions for judicial review
in both cases, and the motions were denied on October 5,
2004. See Dkt. # 11-14 at 6; Dkt. # 11-15 at 6.
7, 2006, in Case No. CF-2003-386B, Petitioner filed an
application for post-conviction relief (Dkt. # 11-9). By
Order filed August 18, 2006 (Dkt. # 11-10), the state
district judge denied the application for post-conviction
relief finding Petitioner's claims to be procedurally
barred. Petitioner appealed. Id. at 4-5. On December
28, 2006, in Case No. PC-2006-981 (Dkt. # 11-11), the OCCA
imposed a procedural bar and affirmed the denial of
post-conviction relief. Petitioner did not file an
application for post-conviction relief in Case No.
CF-2003-540 until February 10, 2014. See Dkt. #
August 3, 2011, the State filed applications to revoke
suspended sentences in both cases. See Dkt. # 11-14
at 8; Dkt. # 11-15 at 7. On October 5, 2011, after having
found Petitioner to be competent on September 26, 2011,
see Dkt. # 11-14 at 10; Dkt. # 11-15 at 9, the state
district judge granted the applications to revoke and revoked
Petitioner's suspended sentences in full. See
Dkt. # 11-14 at 10-11; Dkt. # 11-15 at 9. Petitioner appealed
the revocations to the OCCA. On May 1, 2013, in Case No.
RE-2011-914, the OCCA affirmed the orders revoking
Petitioner's suspended sentences. See Dkt. # 11
at 3; see also Dkt. # 11-4 at 2; Dkt. # 11-7 at 2.
the OCCA affirmed the revocation orders in 2013, Petitioner
filed numerous collateral challenges to his convictions.
See Dkt. ## 11-3, 11-4, 11-5, 11-6, 11-7, 11-8
(post-conviction proceedings commenced on February 10, 2014,
and terminated with OCCA's order declining jurisdiction,
filed June 4, 2014, in Case No. PC-2014-460); Dkt. ## 11-12,
11-3 (collateral challenges filed in district court on
February 18, 2015, and terminated with OCCA's order,
filed October 5, 2015, in Case No. PC-2015-307, reversing and
remanding to district court with instructions to enter
“proper orders” disposing of Petitioner's
motions); Dkt. ## 11-1, 11-2 (post-conviction appeal from
district court's order filed December 11, 2015, and
terminated with OCCA's order, filed April 22, 2016, in
Case No. PC-2016-12, affirming district court's dismissal
of post-conviction proceedings). Petitioner's efforts to
obtain collateral relief from his convictions and sentences
have been unsuccessful.
28, 2016, Petitioner filed his federal petition for writ of
habeas corpus (Dkt. # 1). Petitioner raises twelve (12)
grounds of error, as follows:
Ground 1: Petitioner was not accorded a competency hearing.
Ground 2: Retro-active application of and not informing
Petitioner of the Oklahoma Sex Offender Registration Act or
his true range of punishment prior to accepting his plea
violated due process, double jeopardy, ex post facto and
violates the Bill of Attainder Clause, makig [sic] his plea
truly involunary [sic] and unintelligent.
Ground 3: Petitioner's counsel was ineffective.
Ground 4: Conviction obtained by plea of guilty which was
unlawfully induced or not made voluntarily with understanding
of the nature of the charge and the consequences of the plea.
Ground 5: Conviction obtained by the unconstitutional failure
of the prosecution to disclose to the defendant evidence
favorable to the defendant.
Ground 6: Conviction obtained by a violation of the
protection against double jeopardy.
Ground 7: Accumulative Error's [sic].
Ground 8: Abuse of discretion based on prejudice of the
Ground 9: Challenge to the Constitutionality of OSORA the Sex
Offender Registration Act, 57 O.S., § 581 et. seq.
Ground 10: Petitioner challenges the Constitutionality of the
Plea Bargaining Doctrine as applied by Oklahoma Law.
Ground 11: Actual Innocence.
Ground 12: SORNA overreaches the government's spending
limits and is unconstitutional.
Id. As stated above, Respondent moves to dismiss the
petition as time barred. See Dkt. ## 10, 11.
response, Petitioner has filed a combined motion to
supplement his petition (Dkt. # 15) and response to the
motion to dismiss (Dkt. # 16). As a preliminary matter, the
Court shall grant Petitioner's motion to supplement and
shall consider the supplemental information alleged in
Petitioner's response in resolving issue of timeliness.
In his response, Petitioner states that he abandons Grounds
8, 9, 10, 11, and 12. Id. at 2. Because Petitioner
has abandoned Grounds 8-12, the Court will analyze the
timeliness of Grounds 1-7.
Antiterrorism and Effective Death Penalty Act (AEDPA),
enacted April 24, 1996, established a one-year limitations