United States District Court, N.D. Oklahoma
ORLANDO J. EVITT, Petitioner,
TRACY MCCOLLUM, Warden,  Respondent.
OPINION AND ORDER
H. Payne United States District Judge.
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.
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.
Case No. CF-2005-531
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.
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,  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.
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. In an unpublished summary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.
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.
Case Nos. CF-2010-191 and CM-2010-349
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.
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.
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
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
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
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. §
Challenge to accelerated sentences in Case No. CF-2005-531 is
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
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).
§ 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.
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, ...