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 Bernard Jones, Doc. 18, and Petitioner's
Objection, Doc. 19. The Magistrate Judge recommended that
this Court dismiss Petitioner's habeas petition under 28
U.S.C. § 2254 on jurisdictional grounds and as untimely
and that this Court deny Petitioner injunctive relief, Doc.
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. The Court concurs with the
Magistrate Judge that Petitioner's habeas petition is
jurisdictionally defective and untimely and that injunctive
relief is inappropriate. The Court will adopt the Report and
Recommendation as it pertains to denying habeas relief. It
will also adopt the Report and Recommendation that injunctive
relief be denied, though on slightly different grounds.
State of Oklahoma charged Petitioner Daniel Akre with four
counts of lewd molestation and one count of indecent proposal
stemming from alleged conduct with a minor victim between
2003 and 2006. On February 1, 2008, Mr. Akre entered an
Alford Plea on all five charges. The court sentenced him to
twenty years in prison on each count, to be served
concurrently, with all but the first ten years suspended.
than six years later, on June 6, 2014, Mr. Akre applied to
the state trial court for post-conviction relief. His
application was denied on February 24, 2016. Petitioner then
filed a Petition in Error on March 24, 2016, challenging the
trial court's denial. The Oklahoma Court of Criminal
Appeals affirmed the trial court's denial on May 13,
2016. Petitioner was released from incarceration on July 19,
2016, and is now serving a suspended sentence.
Motion for Habeas Relief
Akre seeks habeas relief on nine grounds. Of those nine, the
Magistrate Judge found that the first, along with the third
through ninth, were untimely. These arguments essentially
concerned some combination of the trial court's denial of
a competency hearing, ineffective assistance of counsel, the
denial of Miranda rights and/or his (allegedly
coerced) waiver of them, prosecutorial misconduct, and the
trial court's evidentiary rulings.
these arguments were untimely, according to the Magistrate
Judge, under the Antiterrorism and Effective Death Penalty
Act's one-year statute of limitations on state prisoners
seeking habeas relief under 28 U.S.C. § 2254. Per §
2244(d)(1)(A), this limitations period generally begins to
run from the date on which the conviction became final by the
conclusion of direct review. As the Magistrate Judge found,
Mr. Akre's conviction became final on April 7, 2008,
meaning he had until April 8, 2009, to file his Petition. Mr.
Akre first challenged his conviction by filing an Application
for Post-Conviction Relief with the trial court on June 6,
2014. The trial court denied his application on February 24,
2016. He then filed a Petition in Error on March 24, 2016,
challenging the trial court's denial. The Oklahoma Court
of Criminal Appeals (OCCA) affirmed the trial court's
decision on May 13, 2016.
Akre filed this Petition for habeas relief on June 8, 2016,
more than seven years after his conviction had become final.
Mr. Akre does not address this procedural time bar in his
Objection to the Report and Recommendation. Consequently,
Court will adopt the portion of the Report and Recommendation
finding that Mr. Akre's arguments in his first and third
through ninth grounds are untimely and are not saved by
statutory or equitable tolling, including his state-court
applications for post-conviction relief.
Akre's remaining ground for relief, his second, also
fails-though not for timeliness reasons. His argument
concerns the Oklahoma Sex Offender Registration Act (OSORA),
which imposes requirements on him as a convicted sex
offender. He believes the State is unconstitutionally
applying OSORA because he was allegedly not informed of the
Act's supervisory conditions before he pled guilty and
because OSORA has been amended since his conviction, thereby
imposing ex-post-facto requirements upon him.
Magistrate Judge denied his OSORA-argument, finding that Mr.
Akre could not advance it via petition under § 2254. The
impediment was jurisdictional; the writ of habeas corpus is
“used to collaterally attack the validity of a
conviction and sentence.” McIntosh v. U.S.
Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997)
(emphasis added). “The collateral consequence of a
conviction, those consequences with negligible effects on a
petitioner's physical liberty of movement, are
insufficient to satisfy the custody requirement.”
Calhoun v. Attorney Gen. of Colo., 745 F.3d 1070,
1073 (10th Cir. 2014). OSORA's requirements, the
Magistrate Judge found, are merely collateral consequences of
Mr. Akre's conviction and sentence-meaning they are not
subject to habeas attack.
conclusion was correct. And to be fair, Mr. Akre's
displeasure with OSORA's requirements and their
accompanying social unease are more likely than not sincere.
But in dismissing his argument on jurisdictional grounds, the
Magistrate Judge correctly applied Tenth Circuit precedent,
Dickey v. Allbaugh, 664 F.App'x 690, 693 (10th
Cir. 2016), cert. denied, No. 16-1006, 2017 WL
661756 (June 26, 2017). There, the court held that
OSORA's requirements do not “impose a severe
restraint on [a defendant's] freedom sufficient to
satisfy the ‘in custody' requirement of §
2254.” Id. And that decision was consonant
with those of other federal courts of appeal evaluating
states' sex-offender-regulatory schemes. See, e.g.,
Wilson v. Flaherty, 689 F.3d 332, 338 (4th Cir. 2012);
Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008);
Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002);
Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999);
Williamson v. Gregoire, 151 F.3d 1180 (9th Cir.
2254 is thus not a proper vehicle to challenge OSORA's
requirements, and Mr. Akre's objections to the contrary
Motion for ...