United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White Judge
action is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 as barred by the statute of
limitations (Dkt. 7). Petitioner, a pro se prisoner in the
custody of the Oklahoma Department of Corrections, is
incarcerated at Mack Alford Correctional Center in
Stringtown, Oklahoma. He is attacking his conviction and
sentence in Marshall County District Court Case No.
CF-2009-134 for Endeavoring to Manufacture a Controlled
alleges the petition was filed beyond the one-year statute of
limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996:
(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 for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d).
record shows that on February 25, 2010, Petitioner's
Judgment and Sentence was entered following his plea of
guilty and sentencing (Dkts. 8-1, 8-2). Because he did not
seek to timely withdraw his plea or seek a direct appeal to
the Oklahoma Court of Criminal Appeals, the conviction became
final on March 8, 2010, ten days after entry of the Judgment
and Sentence. See Rule 4.2, Rules of the
Court of Criminal Appeals, Okla. Stat. tit. 22, Ch.18,
App.; Okla. Stat. tit. 22, § 1051. Pursuant to 28 U.S.C.
§ 2244(d)(1), Petitioner's statutory year began to
run on March 9, 2010, and it expired on March 9, 2011.
See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th
Cir. 2011) (the year begins to run the day after the judgment
and sentence becomes final).
October 9, 2013, Petitioner sent a letter to the state
district court (Dkt. 8-3). The state court construed the
letter as a motion to modify Petitioner's sentence and
denied the request on May 7, 2014 (Dkt. 8-4). Citing Okla.
Stat. tit. 22, § 1051, the district court found it
lacked jurisdiction because the motion was filed more than a
year after sentencing. Id. Therefore, this Court
finds the motion was not “properly filed”
pursuant to 28 U.S.C. § 2244(d)(2). Furthermore, the
motion was filed outside the one-year limitation period.
January 15, 2016, Petitioner filed an application for
post-conviction relief with the state district court (Dkt.
8-5). The application was denied on March 9, 2016, because
Petitioner's claim of ineffective assistance of counsel
had been waived, and Petitioner incorrectly had assumed his
deferred sentence was reduced by his time in jail (Dkt. 8-6).
Petitioner appealed the denial to the Oklahoma Court of
Criminal Appeals (Dkt. 8-7), which affirmed the denial of
relief on June 14, 2016, in Case No. PC-16-263 (Dkt. 8-8).
Petitioner did not initiate his post-conviction application
until the limitation period had expired, there is no
statutory tolling for those proceedings. See May v.
Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (citing 28
U.S.C. § 2244(d)(2)). Therefore, this ...