United States District Court, N.D. Oklahoma
MITCHELL E. THOMAS, Petitioner,
JASON BRYANT, Warden Respondent.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
a state prisoner proceeding pro se,  filed this 28 U.S.C. §
2254 habeas corpus petition (Doc. 6) to challenge the
constitutional validity of his conviction and sentence in
Tulsa County District Court Case No. CF-2013-4194. In
response, Respondent filed a motion to dismiss the petition
as time barred (Doc. 11), along with a supporting brief (Doc.
12). Having reviewed Respondent's motion and brief, and
Petitioner's response to the motion (Doc. 16), the Court
finds that Respondent's motion shall be granted and that
the petition shall be dismissed with prejudice as time
April 2, 2015, Petitioner pleaded guilty to, and was
convicted of, one count of Sexual Abuse of a Minor Child, in
violation of Okla. Stat. tit. 21, § 843.5(E), in Tulsa
County District Court Case No. CF-2013-4194. Doc. 12 at 2;
Doc. 12-4 at 13-16, 24. In accordance with the negotiated plea
agreement, the state district court imposed a 30-year prison
sentence, with the last 5 years suspended. Doc. 12-4 at 16,
23, 31. Petitioner did not seek to withdraw his plea within
10 days of sentencing, nor did he seek direct review of his
conviction and sentence in the Oklahoma Court of Criminal
Appeals (OCCA). Doc. 12-5 at 2.
March 16, 2016, Petitioner applied for post-conviction relief
in the District Court of Tulsa County. Doc. 12-1. In his
application, Petitioner sought permission to file a
certiorari appeal out of time, asserted 14 propositions of
error to support his request for post-conviction relief, and
requested appointment of counsel and an evidentiary hearing.
Id. The state district court denied Petitioner's
request for permission to file an out-of-time appeal, finding
that Petitioner failed to show he was denied an appeal
through no fault of his own. Doc. 12-5 at 4-5. The court also
denied Petitioner's request for post-conviction relief,
concluding that most of his alleged errors were procedurally
barred, id. at 5-7, and rejecting his remaining
alleged errors on the merits, id. at 7-12. Finally,
the court denied Petitioner's requests for appointment of
counsel and an evidentiary hearing. Id. at 12-13.
challenged the state district court's decision on
September 20, 2016, by filing a post-conviction appeal. Doc.
12-6. On November 30, 2016, the OCCA affirmed the state
district court's decision. Doc. 12-7. In doing so, the
OCCA agreed with the state district court's conclusion
that nine of Petitioner's alleged errors were waived
because Petitioner could have raised those errors in a direct
appeal. Id. at 2. The OCCA then considered and
rejected the merits of Petitioner's claims that he was
entitled to post-conviction relief based on either
“actual innocence” or “newly discovered
evidence.” Id. at 2-3. Finally, the OCCA
considered de novo Petitioner's request for permission to
file a certiorari appeal out of time and denied that request.
Like the state district court, the OCCA determined that
Petitioner failed to show that he was denied an appeal
through no fault of his own. Doc. 12-7 at 4.
filed the instant federal habeas petition on January 17,
2017. Doc. 6 at 1.
alleges that he is entitled to federal habeas relief on the
Ground 1: Jurisdictional violations
Ground 2: Indictment violations
Ground 3: Option to charge under lesser offenses was neither
offered nor pursued.
Ground 4: The conviction is based upon perjured, falsified
testimony that was coached, conspired, and misleading,
creating fraud upon the court.
Ground 5: Spousal privilege and confidentiality were
violated, creating an ineligible witness for the prosecution.
Ground 6: Presentence investigation was not ordered or
offered. As a “first time offender” this should
have been automatically ordered and completed without option.
Ground 7: I was deprived of an appeal, through no fault of my
Ground 8: The guilty plea was not intelligently, voluntarily
made, nor entered into due to emotional duress, coercion,
false promise, fear tactics used by the prosecutor, and many
misleading conversations with my paid attorney.
Ground 9: I am actually and factually innocent of the
Ground 10: Newly discovered evidence indicates that my
accuser has, and will continue to manipulate situations for
Ground 11: The evidence and testimony, including statements
and supporting exams, was ...