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Vanderwege v. Allbaugh

United States District Court, N.D. Oklahoma

June 2, 2017

MICHAEL STEVEN VANDERWEGE, Petitioner,
v.
JOE M. ALLBAUGH, Director, Respondent.

          OPINION AND ORDER

          CLAIRE V. EAGAN DISTRICT JUDGE.

         This is 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.

         BACKGROUND

         The 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.

         Represented 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 In an unpublished summary opinion, filed May 28, 1998, in Case No. F-1997-619, the OCCA affirmed the Judgment and Sentence of the trial court.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.

         On May 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.

         On 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. at 13-14.

         On May 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.

         On 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.

         In 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).

         In the 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.

         ANALYSIS

         The 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 ...

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