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McIntosh v. Hunter

United States District Court, E.D. Oklahoma

August 21, 2017

RICHARD SCOTT McINTOSH, Petitioner,
v.
MIKE HUNTER, [1] Oklahoma Attorney General and DAVID BERKEBILE, Warden, Respondent.

          OPINION AND ORDER

          Ronald A. White United States District Judge

         This action is before the Court on the Oklahoma Attorney General'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. 12).[2] Petitioner, a pro se prisoner, currently is serving federal sentences at the U.S. Penitentiary Florence ADMAX in Florence, Colorado. In this action, he is challenging his conviction in Muskogee County District Court Case No. CRF-91-456 for Running a Roadblock (Counts I, II, III, and IX), Robbery with Firearms (Count IV), Shooting with Intent to Kill (Count V, VI, and VII), and Assault with a Deadly Weapon (Count VIII), all after former conviction of a felony.[3]

         Petitioner alleges the State of Oklahoma lost its jurisdiction to try him for the Muskogee County offenses when it allowed the federal government to try and convict him for federal charges while the state proceedings were pending. He maintains that while his federal prosecution was proceeding, the State was required to try and sentence him for the Muskogee County charges or to discharge the state indictment.

         Respondent alleges the petition was filed beyond the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

(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 subsection.

28 U.S.C. § 2244(d).

         The record shows Petitioner's convictions were affirmed on direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), and four of his sentences were modified in McIntosh v. State, No. F-92-949 (Okla. Crim. App. Dec. 22, 1994) (Dkt 13-2). His convictions became final on March 22, 1995, upon expiration of the 90-day period for a certiorari appeal to the United States Supreme Court. See Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir. 2007); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. Jan. 31, 2001) (holding that a conviction becomes final for habeas purposes when the 90-day period for filing a petition for a writ of certiorari to the United States Supreme Court has passed). Because Petitioner's convictions became final before enactment of the AEDPA on April 24, 1996, he had until April 24, 1997, to initiate this habeas corpus action. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998).

         On July 21, 2015, more than 18 years after the habeas deadline had passed, Petitioner filed his first application for post-conviction relief in the Muskogee County District Court, raising the jurisdictional claim presented in this habeas petition (Dkt. 13-3). On April 13, 2016, the state court set forth the facts of Petitioner's criminal proceedings and denied relief:

1. In his application, Defendant claims that this Court did not have jurisdiction because the State relinquished its jurisdiction to the Federal Government prior ...

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