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Heuston v. Bryant

United States District Court, N.D. Oklahoma

January 9, 2018

BRIAN KEITH HEUSTON, Petitioner,
v.
JASON BRYANT, Warden, Respondent.

          OPINION AND ORDER

          JAMES H. PAYNE UNITED STATES DISTRICT JUDGE.

         Petitioner, a state prisoner appearing pro se, [1] brings this 28 U.S.C. § 2254 habeas corpus action to challenge the constitutionality of his convictions and sentences in the District Court of Washington County, Oklahoma, No. CF-2007-396. Doc. 1 at 1. Before the Court are three motions: Respondent's motion to dismiss the petition as time barred under 28 U.S.C. § 2244(d) (Doc. 15), Petitioner's motion to clarify the petition (Doc. 18), and Petitioner's motion for a report and recommendation (Doc. 23). For the reasons discussed below, the Court finds that Respondent's motion to dismiss shall be granted and that the petition shall be dismissed with prejudice. As a result, Petitioner's motions to clarify the petition and for a report and recommendation shall be declared moot.

         BACKGROUND

         In 2008, a Washington County jury found Petitioner guilty of two crimes: first degree burglary, in violation of Okla. Stat. tit. 21, § 1431, after former conviction of a felony; and assault and battery with intent to kill, in violation of Okla. Stat. tit. 21, § 652(C), after former conviction of a felony. Doc. 1 at 1; Doc. 16-1 at 1.[2] Consistent with the jury's recommendations, the state district court imposed a sentence of life imprisonment and a consecutive 20-year prison sentence. Doc. 16-1 at 1. Represented by his trial attorneys, Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (OCCA). Id. at 1, 3. The OCCA affirmed the judgment and sentence in a decision filed September 16, 2009. Id. at 1. Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court. Doc. 1 at 3.

         On March 24, 2010, Petitioner retained an attorney, Jeffrey Box, to work on various matters including an application for state post-conviction relief. Doc. 19 at 1-2, 9-10. According to Petitioner, Box failed to communicate with Petitioner, failed to prepare or file an application for post-conviction relief despite Petitioner's repeated requests that he do so, and failed to timely return Petitioner's case materials to Petitioner. Id. at 9-11. On April 12, 2012, Petitioner hired a second attorney, Charles Fox, to file an application for state post-conviction relief. Id. at 15-16. According to Petitioner, Fox did not timely respond to Petitioner's requests regarding the status of his application, did not prepare or file an application, and did not timely return Petitioner's case materials. Id. at 16-17. Petitioner also alleges that his trial/appellate attorneys failed to timely respond to his requests that they return his legal materials; Petitioner ultimately received those materials on February 6, 2013. Id. at 2. In late April and early May 2013, Petitioner filed complaints against Box and Fox with the Oklahoma Bar Association. Id. at 8, 14. Fox returned Petitioner's case materials to Petitioner on May 15, 2013. Id. at 2, 13.

         Meanwhile, Petitioner attempted to file a pro se application for post-conviction relief in state court. The Washington County District Court Clerk received an application from Petitioner on March 25, 2013. See Doc. 16-5. By order filed April 16, 2013, the state district court denied the application because Petitioner failed to submit the application on the form required by the OCCA's rules. Id. The state district court returned the application to Petitioner and directed him to resubmit the application using the correct form. Id. Petitioner then filed a writ of mandamus requesting that the OCCA direct the state district court to file his deficient application. See Doc. 16-7. The OCCA denied the mandamus request on July 25, 2013. Id.

         Petitioner ultimately submitted an application on the correct form, asserting fifteen propositions of error in support of his claim that he was deprived of his Sixth Amendment right to the effective assistance of trial and appellate counsel. Doc. 16-2 at 2-90. That application was filed on June 9, 2014.[3] Id. at 1. The state district court conducted an evidentiary hearing and, by order filed October 23, 2015, denied Petitioner's application for post-conviction relief. Doc. 16-3. The OCCA affirmed the state district court's order on April 21, 2016. Doc. 16-4.

         Petitioner filed the instant federal habeas petition (Doc. 1), along with a supporting brief (Doc. 2), on February 13, 2017.[4] Petitioner alleges that he is entitled to federal habeas relief because he was deprived of his Sixth Amendment right to the effective assistance of trial and appellate counsel. See Doc 2 at 25-33. In response to the petition, Respondent filed a motion to dismiss (Doc. 15) and supporting brief (Doc. 16), arguing that the petition is time barred under § 2244(d)(1)'s one-year statute of limitation. Petitioner filed a response to the motion (Doc. 19). Petitioner acknowledges that his petition is untimely but he asserts that he is entitled to equitable tolling because several “extraordinary circumstances” prevented him from timely filing his petition. See Doc. 1 at 11-12; Doc. 2 at 1, 3-6; Doc. 7 at 2-4; Doc. 19 at 1-4.[5]

         ANALYSIS

         The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted April 24, 1996, established a one-year limitation period for habeas corpus petitions as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State actions;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d). In general, the limitation period begins to run from the date on which a prisoner's conviction becomes final, but it may also commence under the terms of § 2244(d)(1)(B), (C), and (D). Regardless of which date the one-year limitation period commences, the period is statutorily tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). And, because AEDPA's one-year limitation period is not jurisdictional, the untimeliness of a habeas petition may be excused through equitable tolling, Holland v. ...


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