United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE.
a state prisoner appearing pro se,  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.
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. 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.
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.
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.
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. 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.
filed the instant federal habeas petition (Doc. 1), along
with a supporting brief (Doc. 2), on February 13,
2017. 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.
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. ...