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McElhaney v. Bear

United States District Court, E.D. Oklahoma

April 5, 2017

ALBERT McELHANEY, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          OPINION AND ORDER

          James H. Payne, United States District Judge

         This action is before the Court on Respondent's motion to dismiss Petitioner's petition for a writ of habeas corpus as barred by the statute of limitations. Petitioner, a pro se prisoner in the custody of the Oklahoma Department of Corrections, is attacking his conviction and sentence in McIntosh County District Court Case No. CF-2009-76 for Murder in the Second Degree, After Former Conviction of Two or More Felonies. Respondent alleges the petition was filed beyond the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2244(d):

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post- conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         The following dates are pertinent to the motion to dismiss:

07/22/2010

Petitioner entered blind pleas of guilty in McIntosh County District Court Case No. CF-2009-76 to Murder in the Second Degree (DUI) (Count 1); Driving with License Cancelled/ Suspended/Revoked (Count 2); Transporting Open Bottle or Container of Liquor (Count 3); Failure to Carry Insurance/ Security Verification Form (Count 4); and Failure to Display Current Tag (Count 5) (Dkt. 8-2).

08/26/2010

Petitioner's Judgment and Sentence was entered (Dkt. 8-3).

09/07/2010

Petitioner filed a motion to withdraw guilty plea (Dkt. 8-4).

09/30/2010

The state district court held a hearing on Petitioner's motion to withdraw guilty plea and denied the motion (Dkt. 8-5).

10/11/2010

Petitioner's conviction became final.

03/14/2011

Petitioner filed an application for post-conviction relief and request for appeal out of time in the McIntosh County District Court (Dkt. 8-6).

12/11/2012

The McIntosh County District Court denied Petitioner's post-conviction application and request for appeal out of time (Dkt. 8-7).

01/10/2013

Petitioner's final day of the 30-day period for appealing the denial of post-conviction relief and request for recommendation for appeal out of time.

08/12/2013[1]

Petitioner's year to file his habeas corpus petition expired.

03/06/2014

Petitioner filed a second application for post-conviction relief (Dkt. 8-8).

08/21/2014

Petitioner filed an amended/supplemental application for post-conviction relief (Dkt. 8-9).

09/18/2015

The McIntosh County District Court denied Petitioner's amended/supplemental application for post-conviction relief (Dkt. 8-11).

02/24/2016

The Oklahoma Court of Criminal Appeals affirmed the denial of Petitioner's post-conviction application in Case No. PC-2015-846 (Dkt. 8-12).

03/23/2016

Petitioner filed this petition for a writ of habeas corpus.

         The record shows that Petitioner's Judgment and Sentence was entered on August 26, 2010, and his motion to withdraw his guilty plea was denied on September 30, 2010. Because he did not file a notice of intent to appeal and designation of the record, his conviction became final on October 11, 2010, ten days after the denial of his motion to withdraw the plea. See Rule 4.2(D), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch.18, App. Pursuant to 28 U.S.C. § 2244(d)(1), Petitioner's statutory year began to run on October 12, 2010, and it expired on October 12, 2011. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011) (the year begins to run the day after the judgment and sentence becomes final).

         Pursuant to 28 U.S.C. § 2244(d)(2), the statute of limitations is tolled while a properly-filed application for post-conviction relief or other collateral review of the judgment at issue is pending. Petitioner filed a post-conviction application on March 14, 2011, and the state district court denied the application on December 11, 2012. The limitation period also was tolled an additional 30 days, until January 10, 2013, to allow Petitioner to perfect a post-conviction appeal, regardless of whether he actually appealed or not. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000). In all, Petitioner's deadline for filing this habeas action was extended to August 12, 2013. Petitioner's subsequent attempts to obtain post-conviction relief before the state courts, which were filed after August 12, 2013, cannot serve to toll an already expired statute of limitations. See May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003). Because the petition was not filed until March 23, 2016, it is barred by the statute of limitations.

         Petitioner alleges his petition is not time barred, because of “time tolled during state exhaustion, and state impeadiments [sic]” (Dkt. 1 at 13) (emphasis in original). The Court construes this statement as a possible request for equitable tolling. Petitioner, however, carries the burden of establishing equitable tolling. Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir. 2008). Equitable tolling of § 2244(d)(1)'s one-year statute of limitations is available “only in rare and exceptional circumstances.” York v. Galetka, 314 F.3d 522, 527 (10th Cir. 2003). Generally, equitable tolling requires a litigant to establish two elements: “(1) that he ...


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