United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge Eastern District of
action is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
as barred by the statute of limitations (Dkt. 8). Petitioner,
a pro se prisoner in the custody of the Oklahoma Department
of Corrections, is incarcerated at Lawton Correctional
Facility in Lawton, Oklahoma. He is attacking his conviction
and sentence in Pontotoc County District Court Case No.
CF-2010-411 for Distribution of CDS within 2, 000 feet of a
Park (Count 1), Conspiracy to Deliver CDS (Count 2), Pattern
of Criminal Offenses in Two or More Counties (Count 3),
Unlawful Possession of CDS with Intent to Distribute (Count
4), Distribution of CDS (Count 5), and Unlawful Use of
Telecommunication Device to Facilitate a Felony (Count 6),
all after former conviction of three felonies.
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 June 30, 2011, Petitioner entered a plea
of nolo contendere (Dkt. 9-1), and his Judgment and
Sentence was entered on August 12, 2011 (Dkt. 9-2). 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 August 22, 2011, 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 August 23, 2011, and it
expired on August 23, 2012. 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).
This habeas corpus petition, filed on September 12, 2016
(Dkt. 1), was untimely.
August 20, 2013, Petitioner filed an application for
post-conviction relief in the state district court which was
denied on September 16, 2013 (Dkts. 9-3, 9-4). The denial was
affirmed by the Oklahoma Court of Criminal Appeals on
December 27, 2013 in Case No. PC-13-1025 (Dkt. 9-6). Because
Petitioner did not initiate his post-conviction application
until the limitation period had expired, there is no
statutory tolling for these post-conviction proceedings.
See May v. Workman, 339 F.3d 1236, 1237 (10th Cir.
2003) (citing 28 U.S.C. § 2244(d)(2)).
subsequently sought post-conviction relief from the state
district court and the Court of Criminal Appeals, but he was
denied on each occasion (Dkts. 9-7 at 2, 9-8, 9-9). Again,
these post-conviction proceeding commenced after expiration
of the one-year ...