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Evitt v. Mccollum

United States District Court, N.D. Oklahoma

June 19, 2017

ORLANDO J. EVITT, Petitioner,
v.
TRACY MCCOLLUM, Warden, [1] Respondent.

          OPINION AND ORDER

          James H. Payne United States District Judge.

         This is a habeas corpus action. Petitioner, a state inmate appearing pro se, filed his petition (Dkt. # 5) on June 27, 2014. Respondent filed a response to the petition (Dkt. # 14), along with the state court records necessary for resolution of Petitioner's claims (Dkt. ## 14, 15). Petitioner did not file a response. For the reasons discussed below, the petition for writ of habeas corpus is denied.

         BACKGROUND

         Petitioner Orlando J. Evitt challenges his convictions entered in Washington County District Court, Case Nos. CF-2005-531, CF-2010-191, and CM-2010-349. Factual and procedural backgrounds of the convictions are described below.

         A. Case No. CF-2005-531

         The record reflects that, on August 24, 2006, in Case No. CF-2005-531, Petitioner pled no contest to Possession of Marijuana With Intent to Distribute (Count 1), and Possession of Methamphetamine (Count 2). On December 14, 2006, the court formally sentenced Petitioner to five (5) years deferred on each count, with the sentences running consecutively.

         On May 10, 2010, the State filed a motion to accelerate deferred judgment based on the allegation that Petitioner had violated the terms of his deferred sentences by committing subsequent crimes, as charged in Washington County District Court, Case Nos. CF-2010-191, CM-2010-349, and CM-2010-350. After Petitioner was convicted by a jury of the crimes charged in Case Nos. CF-2010-191 and CM-2010-349, [2] the trial judge combined a hearing on the motion to accelerate deferred sentences with formal sentencing in the cases heard by a jury. The trial judge granted the motion to accelerate filed in Case No. CF-2005-531 and sentenced Petitioner to eight (8) years on each count, to be served consecutively to each other but concurrently with sentences entered in Case Nos. CF-2010-191 and CM-2010-349, discussed in more detail below.

         Petitioner appealed the acceleration of his deferred sentences to the Oklahoma Court of Criminal Appeals (OCCA). See Dkt. # 8-1. Represented by counsel, Petitioner raised one proposition of error, as follows:

The decision to accelerate was an abuse of discretion because it was based on incorrect convictions in the deferment judgment and sentence.

See Dkt. # 14-4 at 2.[3] In an unpublished summary opinion, filed October 2, 2012, in Case No. F-2011-0442, the OCCA rejected Petitioner's claims and affirmed the district court's acceleration of Petitioner's deferred sentences. See Dkt. # 14-6. Nothing in the record suggests that Petitioner sought certiorari review in the United States Supreme Court. Respondent states that Petitioner has not sought post-conviction relief in any case. See Dkt. # 14 at 2, ¶ 5.

         On June 27, 2014, Petitioner filed his federal habeas corpus petition (Dkt. # 5). As to his convictions and sentence entered in Case No. CF-2005-531, Petitioner alleges that:

Ground 1: Abuse of discretion - accelerate.

See Dkt. # 5 at 3. In response to the petition, Respondent alleges that this ground for relief is time barred. See Dkt. # 14.

         B. Case Nos. CF-2010-191 and CM-2010-349

         As to Petitioner's convictions entered in Case Nos. CF-2010-191 and CM-2010-349, the record demonstrates that, during the early morning hours of May 7, 2010, at the Brookhaven apartments located in Bartlesville, Oklahoma, sixteen (16) year old A.G. left his apartment, # 228, and went to Petitioner's apartment, # 129, to collect money owed to him for a previous drug sale. A physical altercation erupted between A.G. and Petitioner. A.G. walked away from the fight and headed back to his apartment. As A.G. proceeded to cross the courtyard, he heard someone behind him. A.G. turned, saw Petitioner with a gun in his hand, and heard Petitioner “cock” the gun. A.G. ran into his apartment and locked and dead bolted the door. Three of A.G.'s friends and A.G.'s two younger sisters were also present in apartment # 228. One of A.G.'s friends tried to help A.G. hold the door closed, but Petitioner kicked the door until he broke the frame. A.G. saw Petitioner's hand holding the gun come through the broken door. A.G. ran to his bedroom where another friend had sought cover. Petitioner fired four (4) gunshots into the apartment, then entered the apartment and proceeded to A.G.'s bedroom. A.G. and his friend subdued Petitioner and took possession of the gun. One of Petitioner's friends arrived and helped him leave because the police were on the way. When the police arrived, A.G.'s friend relinquished possession of the gun to Officer Darrell Sweet of the Bartlesville Police Department. Officer Sweet then went to apartment # 129 where he found Petitioner lying on his back on the living room floor. Officer Sweet described Petitioner as “heavily intoxicated” and observed “a lot of blood” on Petitioner's face. Petitioner declined medical treatment. He was arrested and transported to jail.

         As a result of those events, Petitioner was charged in Washington County District Court, Case No. CF-2010-191, with First Degree Burglary (Count 1) and Possession of a Firearm, After Former Conviction of a Felony (Count 2), and in Case No. CM-2010-349, with Reckless Conduct With a Firearm. At the conclusion of trial, Petitioner's jury found him guilty as charged and recommended sentences of seven (7) years imprisonment for Count 1, four (4) years imprisonment for Count 2, and six (6) months in jail for the misdemeanor charge. The trial judge sentenced Petitioner in accordance with the jury's recommendation and ordered the sentences to be served consecutively. During trial proceedings, Petitioner was represented by attorney Jim Conatser.

         Petitioner appealed his convictions to the OCCA. Represented by attorney Katrina Conrad-Legler, Petitioner raised seven (7) propositions of error, as follows:

Proposition 1: The trial court denied Mr. Evitt's Sixth Amendment rights by not allowing Appellant to represent himself pro se.
Proposition 2: Mr. Evitt has been subjected to multiple punishments, which requires the dismissal of Count II in Case No. CF-2010-191 or Count I in CM-2010-349.
Proposition 3: Mr. Evitt's Fourteenth Amendment due process rights pursuant to the United States Constitution were violated when the trial court failed to properly instruct the jury.
Proposition 4: Mr. Evitt was denied effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution and Article II, Sections 6, 7, and 20 of the Oklahoma Constitution.
Proposition 5: Prosecutorial misconduct deprived Mr. Evitt of a fair trial and caused the jury to render excessive sentences.
Proposition 6: Mr. Evitt's sentences are excessive.
Proposition 7: The cumulative effect of all the errors addressed above deprived Mr. Evitt of a fair trial and sentencing.

See Dkt. # 14-1 at 2-3. On May 2, 2013, in an unpublished summary opinion filed in Case No. F-2011-440, the OCCA denied relief and affirmed the Judgment and Sentence of the trial court. See Dkt. # 14-3. Petitioner did not file a petition for writ of certiorari at the United States Supreme Court nor did he seek post-conviction relief in the state courts.

         In his federal petition for writ of habeas corpus, Petitioner raises the following grounds of error as to his convictions in Case Nos. CF-2010-191 and CM-2010-349:

Ground 2: Denial of self representation/denied effective assistance of trial counsel.
Ground 3: Prosecutorial misconduct/excessive sentences.
Ground 4: Cumulative errors.

See Dkt. # 5 at 13, 31, 41. Respondent filed a response (Dkt. # 14) to the petition and asserts that Petitioner is not entitled to relief under 28 U.S.C. § 2254(d).

         ANALYSIS

         A. Challenge to accelerated sentences in Case No. CF-2005-531 is time-barred

         In Ground 1, Petitioner claims that the trial judge abused his discretion in granting the State's motion to accelerate deferred sentences in Case No. CF-2005-531. See Dkt. # 5 at 3. Respondent argues that this claim is time barred. See Dkt. # 14 at 10. The Court agrees with Respondent. 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 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 actions;
(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). In general, the limitations period begins to run from the date on which a prisoner's conviction becomes final, but can also commence under the terms of § 2244(d)(1)(B), (C), and (D). In addition, the limitations period is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period. § 2244(d)(2).

         Under § 2244(d)(1)(A), the acceleration of Petitioner's deferred sentences became final on December 31, 2012, after the OCCA affirmed the state district court's ruling on October 2, 2012, and the 90 day time period for filing a petition for writ of certiorari in the United States Supreme Court had lapsed. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). As a result, Petitioner's one-year limitations clock began to run on January 2, 2013, see Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011), and, absent a tolling event, a federal petition for writ of habeas corpus filed after January 2, 2014, would be untimely. See United States v. Hurst, 322 F.3d 1256 (10th Cir. 2003) (applying Fed.R.Civ.P. 6(a) to calculate AEDPA deadline). Petitioner filed his petition on June 27, 2014, almost six (6) months beyond the deadline. Unless Petitioner is entitled to statutory or equitable tolling, Ground 1 of his petition appears to be untimely.

         Nothing in the record suggests that Petitioner is entitled to statutory tolling of the one-year period. Petitioner did not seek post-conviction or other collateral relief in the state courts. As a result, ...


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