United States District Court, W.D. Oklahoma
HEATON, CHIEF U.S. DISTRICT JUDGE.
is a state prisoner seeking habeas relief pursuant to 28
U.S.C. § 2254. His petition was referred to Magistrate
Judge Shon Erwin for initial proceedings. Judge Erwin has
submitted a Report and Recommendation recommending that the
petition be dismissed as untimely. Petitioner has objected,
therefore the court reviews the petition de novo.
5, 1998, petitioner entered a nolo contendere plea
in the District Court of Cleveland County, Oklahoma. He pled
to one count of first degree murder and two counts of
shooting with intent to kill. On May 29, 1998, he was sentenced
to life in prison on the murder conviction and to twenty year
sentences on each of the shooting convictions, with the two
twenty year sentences to run concurrent to each other, but
consecutive to the life sentence. Petitioner later filed a
motion to modify the sentence, which the court granted. The
modified judgment directed that one of the 20-year sentences
run concurrently with the life sentence.
claims he expressed his desire to file a direct appeal, but
his attorney did not file one. Petitioner took no other
action regarding his conviction and sentence until July 1,
2016, when he filed an application for post-conviction relief
in state district court. That court denied relief, after
which petitioner appealed to the Oklahoma Court of Criminal
Appeals (“OCCA”). On December 14, 2016, the OCCA
affirmed the denial of relief.
the pendency of the state post-conviction proceeding,
petitioner filed a petition in this court under 28 U.S.C.
§ 2241, which this court construed as raising at least
some claims under § 2254. The court dismissed the action
as untimely. Prior to filing the current petition, petitioner
sought authorization from the Tenth Circuit to file a second
or successive habeas action. However, that Court concluded a
further challenge to the conviction pursuant to § 2254
would not be second or successive, as this court had not
followed the appropriate procedures to re-characterize
petitioner's prior motion as a habeas petition.
Therefore, the current petition is properly before this
Report recommends that the petition be dismissed because it
is untimely. Petitioner has objected to dismissal, arguing
that he is entitled to tolling of the limitations period
applicable to his ineffective assistance of counsel claim.
for a writ of habeas corpus by a person in state custody must
be filed within a one year period. That period generally runs
from the date on which the judgment of conviction becomes
final. 28 U.S.C. § 2244(d)(1)(A). In some circumstances,
other dates may be applicable, such as where unconstitutional
state action has impeded the filing of a habeas application,
where a new constitutional right has been recognized by the
Supreme Court, or where the basis for the claim is discovered
later. Id. § 2244(d)(1)(B)-(D). In calculating
the one year period, the “time during which a properly
filed application for State post-conviction . . . with
respect to the pertinent judgment or claim is pending”
is excluded. Id. § 244(d)(2). The one year
limitation is also subject to equitable tolling where the
prisoner can show that he pursued his rights diligently, and
that his failure to timely file the action was “caused
by extraordinary circumstances beyond his control.”
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000). Here, petitioner appears to argue for an alternate
date from which to compute the one year period. He also
asserts that he is entitled to statutory and equitable
tolling of the limitations period.
asserts that the limitation should run either from the date
of the Supreme Court's decision in Buck v.
Davis, 137 S.Ct. 759 (2017), or from the date of the
OCCA's denial of his post-conviction appeal in December
2016. But Buck does not constitute some sort of
general waiver of the limitations period as plaintiff appears
to view it. Buck was a fact-specific examination of
the procedural default rule in light of Martinez v.
Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler,
133 S.Ct. 1911 (2013), turning primarily on the application
of Fed.R.Civ.P. 60(b). None of those authorities are relevant
in this case. Buck did not involve concerns of
timeliness nor does it involve any new right helpful to the
also cannot rely on the OCCA's recent dismissal of his
post-conviction appeal as a basis for tolling. The judgment
of conviction became final ten days after the judgment and
sentence are imposed. See Clark v. Oklahoma, 468
F.3d 711, 713 (10th Cir. 2006); Okla. Crim. App. R. 2.5(A)
& 4.2(A). It was therefore final in May or June of
1998, and the period for filing a habeas
petition ended in June of 1999 at the latest. An application
for post-conviction relief filed after the expiration of the
deadline does not serve to extend the deadline or avoid its
application. See Fisher v. Gibson, 262 F.3d 1135,
1142-43 (10th Cir. 2001) (no statutory tolling for state
post-conviction proceedings initiated after expiration of the
limitation period). Petitioner has not shown a basis for
also not stated a basis for equitable tolling. His equitable
tolling argument appears to suffer from the same
misunderstanding as his statutory tolling argument, in that
it confuses procedural default with issues of timeliness.
But, in any event, petitioner is not entitled to equitable
tolling for at least two reasons. First, petitioner did not
diligently pursue his rights. Petitioner argues that he did
not know that his attorney had not filed a direct appeal
until the OCCA's opinion in December of 2016. That
suggestion does not, however, explain or excuse a 17-year
delay. Prisoners, although incarcerated, “must
‘vigilantly oversee, ' and ultimately bear
responsibility for, their attorneys' actions or
failures.” Broadus v. Hartley, 345 F.
App'x 345, 348 (10th Cir. 2009) (quoting Fleming v.
Evans, 481 F.3d 1249, 1255-56 (10th Cir. 2007)).
petitioner has not shown the “egregious
misconduct” of counsel necessary to justify equitable
tolling. Simple negligence on counsel's part is not
sufficient. Fleming, 481 F.3d at 1255. Substantially
for the reasons stated in the Report, the court ...