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McCullough v. Bryant

United States District Court, N.D. Oklahoma

January 18, 2018

RODNEY CHARLES McCULLOUGH, Petitioner,
v.
JASON BRYANT, Warden, Respondent.

          OPINION AND ORDER

          TERENCE KERN UNITED STATES DISTRICT JUDGE.

         On July 28, 2017, Petitioner, a pro se state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). He paid the $5.00 filing fee on August 31, 2017 (Dkt 3), and on September 1, 2007, he filed an amended petition (Dkt. 4). On September 27, 2017, Respondent filed a motion to dismiss the petition as time barred (Dkt. 9), and Petitioner filed a response to the motion on October 12, 2017 (Dkt. 11). For the reasons set forth below, the Court finds the amended petition must be dismissed.

         Petitioner is attacking his conviction and life sentence for First Degree Murder in Tulsa County District Court Case No. CF-1990-1475 (Dkt. 4 at 1). He alleges in his sole ground for relief that modification of his sentence is required, because the sentencing court failed to assess his future dangerousness correctly (Dkt. 4 at 3). Petitioner bases this claim on his alleged completion of rehabilitative programs and an assessment by the Oklahoma Pardon and Parole Board that he is low risk for further criminal behavior. Id.

         Respondent alleges in his motion to dismiss that Petitioner's request for habeas corpus relief is barred by the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which was on enacted April 24, 1996:

(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 shows that the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitioner's Judgment and Sentence in Case No. F-1990-1341 on March 27, 1995 (Dkt. 10-1). He sought rehearing which was denied on April 28, 1995 (Dkt. 10-2). Therefore, the conviction became final on July 27, 1995, upon expiration of the 90-day period for a certiorari appeal to the United States Supreme Court. See Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th Cir. 2007); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. Jan. 31, 2001) (holding that a conviction becomes final for habeas purposes when the 90-day period for filing a petition for a writ of certiorari to the United States Supreme Court has passed).

         Because petitioner's conviction and sentence became final before enactment of the AEDPA, he had one year from the enactment date until April 24, 1997, to initiate a habeas corpus action. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998) (recognizing judicially-created one-year grace period). This habeas action, however, was not commenced until July 28, 2017. Unless Petitioner is entitled to statutory or equitable tolling, his petition is untimely.

         Pursuant to 28 U.S.C. § 2244(d)(2), the statute of limitations is tolled while a properly-filed application for post-conviction relief or other collateral review of the judgment at issue is pending. Only a state post-conviction application filed within the year allowed by the AEDPA can toll the statute of limitations. Clark v. Oklahoma, 4 ...


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