United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
a state prisoner, filed this 28 U.S.C. § 2254 habeas
corpus petition (Doc. 1) to challenge the constitutional
validity of his conviction and sentence in Craig County
District Court, Case No. CF-2006-33. In response, Respondent
filed a motion to dismiss the petition as time barred (Doc.
5), along with a supporting brief (Doc. 6). Having reviewed
Respondent's motion and brief, and Petitioner's
response to the motion (Doc. 9), the Court finds that
Respondent's motion shall be granted and that the
petition shall be dismissed with prejudice as time barred.
2006, the state charged Petitioner in Craig County District
Court, Case No. CF-2006-33, with three counts of Lewd
Molestation, in violation of Okla. Stat. tit. 21, §
1123(A)(5)(f). Doc. 6-1 at 1. The State alleged, in all three
counts, that Petitioner molested his step-daughter, F.O.
See Doc. 6-2 at 3-5. In September 2007, at the
conclusion of a two-day trial wherein both F.O. and
Petitioner testified, the jury found Petitioner guilty of the
lesser-included offense of Indecent Exposure, in violation of
Okla. Stat. tit. 21, § 1021(A)(1), on Count 1; not
guilty on the Lewd Molestation charge contained in Count 2;
and guilty on the Lewd Molestation charge contained in Count
3. Doc. 6-1 at 1, 3; Doc. 6-3 at 1. Pursuant to the
jury's recommendations, the state district court imposed
a 2-year prison sentence and a fine of $3, 500 on Count 1 and
a consecutive, 20-year prison sentence on Count 3. Doc. 6-1
filed a direct appeal with the Oklahoma Court of Criminal
Appeals (OCCA). Id. Petitioner alleged that (1) he
was denied due process because the trial court omitted a jury
instruction, (2) the evidence was insufficient to support his
convictions, (3) he received an excessive sentence, and (4)
cumulative error deprived him of a fair trial. Id.
at 2. The OCCA affirmed the judgment and sentence on December
22, 2008. Id. at 1, 5.
February 12, 2016, Petitioner applied for post-conviction
relief in the District Court of Craig County. Doc. 6-2. In
his application, Petitioner asserted five propositions of
error but essentially advanced two claims: (1) trial counsel
was ineffective, and (2) appellate counsel was ineffective
for failing to raise an
ineffective-assistance-of-trial-counsel claim on direct
appeal. See Id. at 2-23. The state district court
denied relief on July 14, 2016. Doc. 6-3. By order filed
November 30, 2016, the OCCA declined to exercise jurisdiction
over Petitioner's untimely appeal from the district
court's order denying post-conviction relief. Doc. 6-4.
filed the instant federal habeas petition on April 3, 2017.
Doc. 1 at 1.
alleges that he is entitled to federal habeas relief on one
ground: his trial counsel was ineffective for failing to
“present the exculpatory testimony” from five
witnesses who would have testified that that the victim in
this case-Petitioner's step-daughter, F.O.-had a motive
to lie about Petitioner's conduct and falsified her
allegations against him. Doc. 1 at 5; see also Doc.
6-2 at 3 n.2.
contends that Petitioner's habeas corpus petition is time
barred under 28 U.S.C. § 2244(d), and that Petitioner is
not entitled to either statutory or equitable tolling. Doc. 6
response to the motion to dismiss, Petitioner asserts that he
is “actually innocent, ” and that he is therefore
entitled to the equitable exception to § 2244(d)'s
one-year limitation period that was recognized in
McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924
(2013). Doc. 9 at 1-4.
Petitioner's § 2254 petition is time
the Antiterrorism and Effective Death Penalty Act (AEDPA) a
person in custody under judgment of a state court must file
his or her § 2254 habeas petition within one year of the
“latest of” four specified dates. 28 U.S.C.
§ 2244(d)(1). The relevant date here is the one
specified in § 2244(d)(1)(A): “the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such
challenges the judgment entered against him in Craig County
District Court, Case No. CF-2006-33. Petitioner sought direct
review of his convictions and sentences, and the OCCA
affirmed the same on December 22, 2008. Doc. 6-1. Petitioner
had 90 days thereafter, or until March 23, 2009, to file a
petition for writ of certiorari with the United States
Supreme Court. See Sup. Ct. R. 13(1) (providing that
petition for writ of certiorari must be filed “within
90 days after entry of the [state-court]
judgment”). Because Petitioner did not seek a writ of
certiorari from the Supreme Court, see Doc. 1 at 3,
his judgment became final on March 23, 2009, when his time to
do so expired. See Locke v. Saffle, 237 F.3d 1269,
1273 (10th Cir. 2001) (explaining that when petitioner does
not file petition for writ of certiorari with Supreme Court,
conviction becomes final when time to file such petition
expires). Thus, Petitioner's one-year period to file his
habeas petition began to run the next day, on March 24, 2009,
and expired on March 24, 2010. See Fed. R. Civ.
6(a)(1)(A) (excluding day of triggering event from time
computation for period stated in days); United States v.
Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003) (holding
that Fed.R.Civ.P. 6(a) applies in computing AEDPA's
one-year limitation period).
filed his habeas petition over seven years later, on April 3,
2017. Doc. 1 at 1. Thus, Petitioner's habeas petition
shall be dismissed as time barred unless he can demonstrate
either (1) that he is entitled to statutory or ...