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Turnbough v. Bryant

United States District Court, N.D. Oklahoma

November 15, 2017

CONWAY JAY TURNBOUGH, JR., Petitioner,
v.
JASON BRYANT, Warden Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner, 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.

         BACKGROUND

         In 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 at 1.

         Petitioner 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.

         On 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.

         Petitioner filed the instant federal habeas petition on April 3, 2017. Doc. 1 at 1.

         ANALYSIS

         Petitioner 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.

         Respondent 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 at 1-3.

         In 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.

         A. Petitioner's § 2254 petition is time barred.

         Under 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 review.”[1]

         Petitioner 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”).[2] 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).

         Petitioner 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 ...


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