United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge Charles Goodwin, Doc. 8, entered November
30, 2016, and Petitioner's Objection to Report and
Recommendation, Doc. 11, filed January 19, 2017. The
Magistrate Judge recommended that the Petition for a writ of
habeas corpus under 28 U.S.C. § 2254 be dismissed as
to 28 U.S.C. § 636(b)(1)(B), the Court has reviewed de
novo those portions of the Report and Recommendation to which
Petitioner has objected. Because the Court concurs with the
Magistrate Judge that the Petition is untimely, the Petition
Darrell Weaver was convicted on two counts of first-degree
rape in the District Court of Custer County, Oklahoma, on
March 23, 2003, and sentenced to two consecutive fifty-year
terms of imprisonment. Petitioner appealed his conviction and
sentence, which was then affirmed by the Oklahoma Court of
Criminal Appeals (“OCCA”)
March 29, 2004. Mr. Weaver did not seek a writ of certiorari
from the United States Supreme Court.
Weaver moved this Court for habeas relief under 28 U.S.C.
§ 2254 on September 7, 2016. Proceeding pro se, Mr.
Weaver offered five grounds for habeas relief: (1)
ineffective assistance of appellate counsel, (2) ineffective
assistance of trial counsel, (3) abuse of discretion by the
trial court by excluding certain defense witnesses, (4)
insufficient evidence to support a conviction, and (5) newly
discovered evidence proving his innocence.
acknowledging that a district court may dismiss a habeas
petition when its untimeliness is clear from the face of the
petition, see Kilgore v. Attorney Gen. of Colorado,
519 F.3d 1084, 1085 (10th Cir. 2008) (citing Rule 4 of the
Rules Governing § 2254 Cases), the Magistrate Judge
recommended dismissal and found that neither statutory nor
equitable tolling allowed Mr. Weaver to overcome this
Antiterrorism and Effective Death Penalty Act (AEDPA)
provides a one-year limitations period for habeas corpus
petitions filed by state prisoners. See 28 U.S.C. §
2244(d)(1). Section 2244(d)(1) provides four separate
potential dates from which to begin counting. While two are
arguably implicated here, neither entitle Mr. Weaver to
first is found in § 2244(d)(1)(D)-“the date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
diligence.” The problem, as the Magistrate Judge
pointed out, is that Mr. Weaver does not allege that he has
evidence which was discovered within a year prior of filing
for habeas relief. He simply alleges that he “has newly
discovered evidence of victim's recantation that
[P]etitioner is in fact actually/factually innocent of any
crime charged against [P]etitioner . . . .” Doc. 1, at
6. Because Mr. Weaver failed to plead any additional facts
that would allow the Magistrate Judge to construe Mr.
Weaver's Petition under § 2244(d)(1)(D), the
Magistrate Judge was required to consider it under §
2244(d)(1)(A). That provision grants a state prisoner one
year to move for habeas relief starting on the “date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A).
Magistrate determined that Mr. Weaver's judgment became
final on June 28, 2004, when the ninety-day period for filing
a certiorari petitioner with the United States Supreme Court
expired. See Harris v. Dinwiddie, 642 F.3d 902, 906
n.6 (10th Cir. 2011). Mr. Weaver's one-year limitations
period began to run the next day, on June 29, 2004, so he had
up to and including June 29, 2005 to move for relief under 28
U.S.C. § 2254. Mr. Weaver's Petition filed on
September 7, 2016, was therefore more than eleven years
Magistrate Judge correctly noted that Mr. Weaver would be
entitled to relief if his limitations period had been either
statutorily or equitably tolled. While Mr. Weaver does not
take issue with the Magistrate's determinations that his
limitations period began running on June 29, 2004, and that
this period was never statutorily tolled, Mr. Weaver does
maintain his actual innocence. Recognizing that Mr. Weaver
proceeds pro se, the Court construes his objection as an
argument that he is entitled to equitable tolling on the
basis of his actual innocence.
receive equitable tolling, a petitioner must generally show
that ‘he has been pursuing his rights diligently'
and that ‘some extraordinary circumstance stood in his
way' that prevented timely filing.” Craig v.
McCollum, 590 Fed.Appx. 723, 725 (10th Cir. 2014)
(citing Lawrence v. Florida, 549 U.S. 327, 336
(2007)). This remedy is rare, and a petitioner must therefore
show specific facts to support his claim of extraordinary
circumstances and due diligence. Id.
Mr. Weaver does not address how he has been diligent in
bringing new evidence of his innocence to the Court's
attention, “a prisoner seeking equitable tolling on
actual innocence grounds need not demonstrate a diligent
pursuit.” Id. (citing Lopez v. Trani,
628 F.3d 1228, 1230 - 1231 (10th Cir. 2010). That said,
equitable tolling still requires extraordinary circumstances.
Id. Those circumstances are specific: a petitioner
must show that “it is more likely than not that no
reasonable juror would have convicted him in light of the new
evidence.” McQuiggin v. Perkins, 133 S.Ct.
1924, 1935 (2013). Further, “[u]nexplained delay in
presenting new evidence bears on the determination whether
the petitioner has made the requisite showing.”
Id. And the petitioner must make an argument that he
is factually innocent, not just legally innocent.
Weaver believes he has made this showing, but the Court is
not persuaded. His sole piece of evidence supporting any
argument of factual innocence is a letter from a friend (whom
Mr. Weaver fails to identify) that alleges that Mr.
Weaver's rape victim (his stepdaughter) tried to tell
authorities that Mr. Weaver was innocent. Doc. 11, Ex. 3, at
7. It is unclear when Mr. Weaver's stepdaughter allegedly
attempted to report his innocence. The letter muses that
police might not have accepted her story since “too
much time had passed [and] she should have told them the
truth to begin with.” Id. Equally unclear is
when Mr. Weaver received this letter. This would seem to be