United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE.
a 28 U.S.C. § 2241 habeas corpus action. Petitioner, a
state inmate appearing pro se, filed his petition
(Doc. 1) on April 13, 2016. In response to the petition,
Respondent filed a motion to dismiss petition for writ of
habeas corpus as time barred (Doc. 15), along with a
supporting brief (Doc. 16). Petitioner filed a response (Doc.
17). For the reasons discussed below, Respondent's motion
to dismiss is granted and the petition is dismissed with
record reflects that, on April 21, 1999, Petitioner entered a
blind plea of guilty to Robbery With Firearms in Oklahoma
County District Court, Case No. CF-1998-873. See
Doc. 16-2. Petitioner was subsequently sentenced to twenty
years imprisonment with all but the first five years
suspended. See Docs. 16-3, 16-4.
September 11, 2007, the State filed the first application to
revoke Petitioner's suspended sentence (Doc. 16-6).
Thereafter, the State filed at least two (2) amended
applications to revoke, see Doc. 16-7, 16-8. On
January 21, 2014, Petitioner was charged with Possession of a
Controlled Dangerous Substance With Intent to Distribute
(Methamphetamine) (Count 1), and Use of a Surveillance Camera
While In Commission of a Felony (Count 2), in Oklahoma County
District Court, Case No. CF-2014-551. See Doc.
16-10. On February 3, 2014, another amended application to
revoke was filed in Case No. CF-1998-873, alleging that
Petitioner had violated the terms of his suspended sentence
by committing the new crimes charged in Case No. CF-2014-551.
See Doc. 16-11. A hearing on the amended application
to revoke was held that sane day. See Doc. 16-13;
Doc. 1 at 10-73, Tr. App. Revoke Hr'g. At the conclusion
of the hearing, the State's amended application to revoke
was granted and the trial court revoked ten (10) years of the
suspended sentence. See Doc. 16-13. Petitioner was
advised of his appeal rights, see Doc. 1 at 72.
However, Petitioner failed to appeal the trial court's
order partially revoking the suspended sentence.
December 2, 2014, Petitioner, while represented by counsel,
filed a motion for judicial review. See Doc. 16-1 at
21. Through counsel, Petitioner and the prosecutor reached an
agreement that, in exchange for revocation of the full 15
year suspended sentence in Case No. CF-1998-873, the charges
filed in Case No. CF-2014-551 would be dismissed.
Id. On January 30, 2015, the trial court judge
approved the agreement and modified Petitioner's revoked
sentence to fifteen (15) years. See Doc. 16-14,
16-15. On April 8, 2015, the State formally dismissed the
charges filed in Case No. CF-2014-551. See Doc.
8, 2015, Petitioner filed a pro se motion for appeal
out of time, seeking to appeal the trial court's order
partially revoking his suspended sentence. See Doc.
16-17. After the State filed a response to the motion (Doc.
16-18) and Petitioner filed a reply (Doc. 16-19), Petitioner
filed, on February 8, 2016, a petition for writ of mandamus
at the Oklahoma Court of Criminal Appeals (OCCA) (Doc.
16-22). On February 29, 2016, the OCCA declined jurisdiction,
finding that Petitioner had failed to serve the adverse party
(Doc. 16-23 at 4).
April 13, 2016, Petitioner filed this 28 U.S.C. § 2241
petition for writ of habeas corpus (Doc. 1). He raises one
(1) ground of error, as follows:
Ground 1: The trial court lacked jurisdiction to revolk [sic]
petitioner's sentence where the hearing on the
state's application to revolk [sic] was outside the
twenty-day time limit imposed by 22 O.S. § 991(b).
See Doc. 1 at 5. In response to the petition,
Respondent filed a motion to dismiss (Doc. 7), arguing that
the petition is time barred.
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 ...