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Ferrell v. Allbaugh

United States District Court, N.D. Oklahoma

January 10, 2018

JOHNNY VAN FERRELL, JR., Petitioner,
v.
JOE M. ALLBAUGH, Director, Oklahoma Department of Corrections, Respondent.

          OPINION AND ORDER

          CLAIRE V. HAG AN, UNITED STATES DISTRICT JUDGE

         Before the Court is respondent's motion to dismiss petitioner's petition for writ of habeas corpus as time barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d) (Dkt. # 16). Petitioner, a state prisoner appearing pro se, filed a response (Dkt. # 18) to the motion to dismiss, and respondent filed a reply (Dkt. # 19). For the reasons discussed below, the Court finds the petition is untimely, and respondent's motion to dismiss shall be granted.

         BACKGROUND

         Petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 on October 17, 2016, in the Western District of Oklahoma (Dkt. # 1), which transferred the case to this Court on January 19, 2017 (Dkt. # 11). Petitioner challenges two convictions and sentences entered in Rogers County District Court: (1) Case No. CF-2013-362 for Embezzlement, After Former Conviction of Two or More Felonies, and (2) Case No. CF-2014-555 for Obtaining Money by False Pretenses, After Former Conviction of Two or More Felonies (Dkt. # 1 at 1).

         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 action;
(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.
(2) The 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         The record reflects that on November 6, 2014, after accepting guilty pleas in both cases, the state district judge sentenced petitioner on ...


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