United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN DISTRICT JUDGE.
a 28 U.S.C. § 2254 habeas corpus case. Petitioner is a
state inmate and appears pro se. In response to the petition
(Dkt. # 1), Respondent filed a motion to dismiss petition as
time barred (Dkt. # 8) and a supporting brief (Dkt. # 9).
Petitioner filed a response to the motion to dismiss (Dkt. #
10), along with a motion to strike the motion to dismiss
(Dkt. # 11). For the reasons discussed below,
Petitioner's motion to strike shall be denied,
Respondent's motion to dismiss shall be granted, and the
petition shall be dismissed with prejudice.
record reflects that, at the conclusion of a jury trial held
in Creek County District Court, Case No. CF-1996-192B,
Petitioner Michael Steven Vanderwege was convicted of Robbery
With a Dangerous Weapon (Count 1), Feloniously Pointing
Firearm (Count 2), and Feloniously Carrying a Firearm (Count
3). See Dkt. # 9-2 at 7. The jury recommended
sentences of 100 years imprisonment on each count.
Id. On April 16, 1997, the trial judge formally
sentenced Petitioner in accordance with the jury's
recommendation. Id. at 8. The sentences for Counts 2
and 3 were ordered to be served concurrently, but consecutive
to the sentence for Count 1. Attorney Frank Pacenza
represented Petitioner during trial proceedings.
by attorney Nancy Walker-Johnson, Petitioner appealed his
convictions and sentences to the Oklahoma Court of Criminal
Appeals (OCCA). In an unpublished summary opinion, filed May
28, 1998, in Case No. F-1997-619, the OCCA affirmed the
Judgment and Sentence of the trial court. See Dkt. #
9-1 at 3. Nothing in the record suggests that Petitioner
sought certiorari review in the United States Supreme Court.
20, 2014, Petitioner filed the first of three (3)
applications for post-conviction relief in the state district
court. See Dkt. # 9-2 at 11. The district court
judge denied the requested relief on June 24, 2014. See
id. Petitioner filed a post-conviction appeal. On
October 30, 2014, in Case No. PC-2014-669, the OCCA declined
jurisdiction and dismissed the post-conviction appeal.
See Dkt. # 9-3 at 2.
January 16, 2015, Petitioner filed a second application for
post-conviction relief. See Dkt. # 9-2 at 13. The
record reflects that, after the state district judge denied
relief on April 20, 2015, Petitioner filed a notice of
post-conviction appeal. Id. Thereafter, on May 5,
2015, in Case No. MA-2015-359, the OCCA declined jurisdiction
and dismissed a petition for writ of mandamus. Id.
27, 2016, Petitioner filed a third application for
post-conviction relief. See id. at 14. After the
state district judge denied relief, Petitioner appealed. By
order filed November 16, 2016, in Case No. PC-2016-622, the
OCCA affirmed the denial of post-conviction relief.
See Dkt. # 9-4 at 3.
December 12, 2016, Petitioner filed his federal petition for
writ of habeas corpus (Dkt. # 1). In his petition, Petitioner
identifies one ground for relief: ineffective assistance of
appellate counsel. See id. at 3. Petitioner claims
his petition is timely because it was filed within one year
of the entry of the OCCA's order affirming the denial of
his third application for post-conviction relief on November
16, 2016. Id. at 6.
response to the petition, Respondent filed a motion to
dismiss and supporting brief (Dkt. ## 8, 9), arguing that the
petition is time barred. Petitioner filed a response in
opposition to the motion to dismiss (Dkt. # 10), and a motion
to strike the motion to dismiss (Dkt. # 11).
motion to strike, Petitioner complains that Respondent failed
to address the merits of the claim of ineffective assistance
of appellate counsel and that, under the interest of justice
standard, the State's motion to dismiss must be stricken
from the record. See Dkt. # 11 at 7. The Court
disagrees with Petitioner. In the order to show cause why the
writ should not issue, see Dkt. # 6, the Court
specifically directed that, as an alternative to filing a
response, Respondent could file a motion to dismiss if
Petitioner failed to file his petition within the one-year
limitations period. Id. at 2. Thus, the Court
authorized Respondent to file a motion to dismiss rather than
a response addressing the merits of Petitioner's claim.
For that reason, Petitioner's motion to strike is
meritless and shall be denied.
Antiterrorism and Effective Death Penalty Act (AEDPA),
enacted April 24, 1996, established a one-year limitations
period for habeas corpus petitions as follows:
(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