United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne, United States District Judge
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
28 U.S.C. § 2244(d).
following dates are pertinent to the motion to dismiss:
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).
Petitioner's Judgment and Sentence was entered
Petitioner filed a motion to withdraw guilty plea
The state district court held a hearing on
Petitioner's motion to withdraw guilty plea and
denied the motion (Dkt. 8-5).
Petitioner's conviction became final.
Petitioner filed an application for post-conviction
relief and request for appeal out of time in the
McIntosh County District Court (Dkt. 8-6).
The McIntosh County District Court denied
Petitioner's post-conviction application and
request for appeal out of time (Dkt. 8-7).
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.
Petitioner's year to file his habeas corpus
Petitioner filed a second application for
post-conviction relief (Dkt. 8-8).
Petitioner filed an amended/supplemental
application for post-conviction relief (Dkt. 8-9).
The McIntosh County District Court denied
Petitioner's amended/supplemental application
for post-conviction relief (Dkt. 8-11).
The Oklahoma Court of Criminal Appeals affirmed the
denial of Petitioner's post-conviction
application in Case No. PC-2015-846 (Dkt. 8-12).
Petitioner filed this petition for a writ of habeas
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
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.
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 ...