United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN UNITED STATES DISTRICT JUDGE.
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.
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.
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
28 U.S.C. § 2244(d).
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).
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.
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 ...