United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge
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. 12).
Petitioner, a pro se prisoner in the custody of the Oklahoma
Department of Corrections who is incarcerated at North Fork
Correctional Center in Sayre, Oklahoma, attacks his
convictions in Atoka County District Court Case No. CRF-88-56
for seven counts of Kidnapping and Atoka County District
Court Case No. CRF-88-70 for Possession of Contraband in a
Penal Institution, all after former conviction of one felony.
He has not filed a response to the motion to dismiss.
alleges the petition was filed beyond the one-year statute of
limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996, codified at 28 U.S.C. § 2244(d)
(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 the Oklahoma Court of Criminal Appeals
(“OCCA”) affirmed Petitioner's Judgments and
Sentences in Case Nos. F-1991-468, F-1991-469, and F-1991-470
on June 15, 1994 (Dkt. 13-1). Therefore, the convictions
became final on September 13, 1994, 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).
AEDPA, which imposed the one-year statute of limitations,
went into effect on April 24, 1996. Petitioner thus was
required to file his habeas corpus petition by April 24,
1997. See United States v. Hurst, 322 F.3d 1256,
1261 (10th Cir. 2003); Hoggro v. Boone, 150 F.3d
1223, 1226 (10th Cir. 1998) (recognizing judicially-created
one-year grace period). With 302 days remaining on his year
under the AEDPA, Petitioner filed an application for
post-conviction relief during the “grace period”
on June 26, 1996 (Dkt. 13-2). The application was denied on
August 12, 1997, id., and there is no record of an
appeal to the OCCA. Petitioner, therefore, is afforded 30
days until September 11, 1997, for the time he could have
sought an appeal of the denial. See Gibson v.
Klinger, 232 F.3d 799, 804 (10th Cir. 2000); see
also Rule 5.2(C)(2), Rules of the Oklahoma Court of
Criminal Appeals, Okla. Stat. tit. 22, ch.18, App.
Petitioner had 302 days from September 11, 1997, to file his
habeas petition, or until July 10, 1998. His habeas petition,
filed on October 13, 2016, is time-barred.
January 21, 2016, Petitioner filed a second application for
post-conviction relief in the district court (Dkt. 13-3),
which was denied on April 6, 2016 (Dkt. 13-4). The OCCA
affirmed the denial in Pyles v. State, No.
PC-2016-342 (Okla. Crim. App. Sept. 2, 2016) (Dkt. 13-5).
This second attempt to obtain post-conviction relief before
the state courts cannot serve to toll an already expired
statute of limitations. See May v. Workman, 339 F.3d
1236, 1237 (10th Cir. 2003).
does not assert he is entitled to equitable tolling.
Generally, equitable tolling requires a litigant to establish
two elements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.” Lawrence v. Florida, 549
U.S. 327, 336 (2007) (citation omitted). The Court finds that