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Bickham v. Allbaugh

United States District Court, E.D. Oklahoma

August 28, 2017

DERRICK E. BICKHAM, Petitioner,
v.
JOE M. ALLBAUGH, DOC Director, Respondent.

          OPINION AND ORDER

          Ronald A. White United States District Judge.

         This 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 Lawton Correctional Facility in Lawton, Oklahoma. He is challenging his convictions and sentences in three Pittsburg County District Court Cases: Case No. CF-2009-312 for Feloniously Pointing a Firearm (Count 1) and Felon in Possession of a Firearm (Count 2), both after former conviction of two or more felonies; Case No. CF-2009-313 for Feloniously Pointing a Firearm (Count 1) and Felon in Possession of a Firearm (Count 2), both after former conviction of two or more felonies; and Case No. CF-2009-349 for First Degree Robbery (Count 1), after former conviction of two or more felonies (Dkt. 8-1 at 1-7). He raises three grounds for relief in his petition:

I. Ineffective assistance of appellate counsel.
II. Ineffective assistance of trial counsel, conflict of interest.
III. The trial court abused its discretion and improperly applied state and federal law by assessing punishment and sentencing against Petitioner without determining whether petitioner was a mentally ill or insane person, after having full knowledge of Petitioner's lengthy mental health background.

         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 postconviction 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 that on February 26, 2010, Petitioner entered a pleas of no contest in Pittsburg County District Court Case Nos. CF-2009-312, CF-2009-313, and CF-2009-349 (Dkt. 8-1). He was sentenced to 20 years of ...


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