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Thomas v. Bryant

United States District Court, N.D. Oklahoma

October 24, 2017

MITCHELL E. THOMAS, Petitioner,
v.
JASON BRYANT, Warden Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE

         Petitioner, a state prisoner proceeding pro se, [1] 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 barred.

         BACKGROUND

         On 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.[2] 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.

         On 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.

         Petitioner 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.

         Petitioner filed the instant federal habeas petition on January 17, 2017.[3] Doc. 6 at 1.

         ANALYSIS

         Petitioner alleges that he is entitled to federal habeas relief on the following grounds:

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 own.
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 offense.
Ground 10: Newly discovered evidence indicates that my accuser has, and will continue to manipulate situations for her benefit.
Ground 11: The evidence and testimony, including statements and supporting exams, was ...

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