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Akre v. Allbaugh

United States District Court, W.D. Oklahoma

July 11, 2017

DANIEL ROBERT AKRE, Petitioner,
v.
JOE M. ALLBAUGH, Respondent.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Before 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. 12.

         Pursuant 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.

         The 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.

         More 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.

         I. Motion for Habeas Relief

         Mr. 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.

         All of 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.

         Mr. 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.

         Mr. 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.

         The 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.

         That 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. 1998).

         Section 2254 is thus not a proper vehicle to challenge OSORA's requirements, and Mr. Akre's objections to the contrary are overruled.

         II. Motion for ...


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