United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
a 28 U.S.C. § 2254 habeas corpus case. Petitioner is a
state inmate and appears pro se. On February 7,
2017, Petitioner filed his petition (Doc. 4), along with a
motion for stay and abeyance (Doc. 5). In response to the
petition, Respondent filed a motion to dismiss petition as
time barred (Doc. 10), along with a supporting brief (Doc.
11). Respondent also filed a response in opposition to
Petitioner's motion for stay and abeyance (Doc. 12).
Petitioner filed a response to the motion to dismiss (Doc.
13). For the reasons discussed below, Respondent's motion
to dismiss shall be denied and Respondent shall file a
response to the petition. Petitioner's motion for stay
and abeyance shall be denied.
record reflects that, at the conclusion of a jury trial held
in Tulsa County District Court, Case No. CF-2010-1963,
Petitioner William Stefvon Hurt was convicted of First Degree
Murder. See Doc. 11-1. On November 14, 2011, the
trial judge sentenced Petitioner, in accordance with the
jury's recommendation, to life imprisonment. Id.
appealed his conviction to the Oklahoma Court of Criminal
Appeals (OCCA). In an unpublished summary opinion, filed May
17, 2013, in Case No. F-2011-1057, the OCCA affirmed the
Judgments and Sentences of the trial court. See Doc.
11-1. Nothing in the record suggests that Petitioner sought
certiorari review in the United States Supreme Court.
24, 2013, Petitioner filed a pro se motion for
suspended sentence (Doc. 11-2). That motion was denied by
order filed June 18, 2013 (Doc. 11-3).
12, 2013, Petitioner filed an application for post-conviction
relief in the state district court (Doc. 11-4). By order
filed August 6, 2013 (Doc. 11-5), the district court judge
denied the requested relief. Petitioner did not file a
January 24, 2014, Petitioner filed a petition for writ of
habeas corpus, using this Court's form. See Doc.
4 at 7. However, he filed the petition in Tulsa County
District Court, the wrong court. The docket sheet for Tulsa
County District Court, Case No. CF-2010-1963, shows that on
January 24, 2014, a petition for writ of habeas corpus ad
prosequendum was filed of record. See
www.oscn.net. However, the docket sheet shows no action
taken on the petition and no record of inquiry made by
January 4, 2017, Petitioner submitted for filing in this
Court a motion for stay and abeyance (Doc. 1), requesting
that his habeas action be stayed while he presented
unexhausted claims to the state courts. Based on
Petitioner's statements, the Clerk of Court opened this
habeas corpus action. By Order filed January 5, 2017 (Doc.
2), the Court promptly denied Petitioner's motion for
stay and abeyance, informed Petitioner that “this Court
has no record of any case filed by Petitioner, ” and
provided Petitioner the opportunity to file a habeas
petition. Thereafter, on February 7, 2017, Petitioner filed
the petition for writ of habeas corpus (Doc. 4) presently
before the Court. Petitioner states that he “submits
his original writ of habeas corpus to the Court for filing,
with only the original claims.” Id. at 5. In
his petition, Petitioner claims that (1) the evidence was
insufficient to support his conviction of First Degree
Murder; (2) the trial was infected with improper, irrelevant,
and purely speculative expert opinion; (3) prosecutorial
misconduct deprived Petitioner of a fair trial; and (4) he
received ineffective assistance of counsel. See Id.
at 8-25. With the exception of the date of
Petitioner's signature, the petition filed in this Court
on February 7, 2017 (id.), is identical to the
petition filed on January 24, 2014, in Tulsa County District
Court, Case No. CF-2010-1963. See www.oscn.net. On
February 7, 2017, Petitioner also filed a second motion for
stay and abeyance (Doc. 5), requesting that this action be
stayed while he returns to state court to exhaust state
remedies for additional claims.
response to the petition, Respondent filed a motion to
dismiss and supporting brief (Docs. 10, 11), arguing that the
petition is time barred. In response to the motion to
dismiss, Petitioner asserts that he is entitled to equitable
tolling. See Doc. 13.
Timeliness of petition
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