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Cohee v. Yates

United States District Court, W.D. Oklahoma

January 31, 2018

DARRIUS DAJUAN COHEE, Petitioner,
v.
JAMES YATES, Respondent. [1]

          REPORT AND RECOMMENDATION

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. (ECF No. 1). United States District Judge David L. Russell has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be DISMISSED on filing as untimely.

         I. PROCEDURAL BACKGROUND

         On February 24, 2014, Petitioner entered a guilty plea in Oklahoma County District Court to Conspiracy to Traffic a Controlled Dangerous Substance and Aggravated Trafficking in Illegal Drugs (cocaine). (ECF No. 1:1).[2] Petitioner did not file a motion to withdraw the plea. (ECF Nos. 1:5, 7, 8, 13 & 1-1:4, 15, 16-18). On June 27, 2016, Mr. Cohee filed an Application for Post-Conviction Relief in the district court. (ECF No. 1-3:1). The district court denied relief on October 6, 2016. (ECF No. 1-3). The Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial on January 5, 2017. (ECF No. 1-2). On December 29, 2017, Mr. Cohee filed the instant habeas petition. (ECF No. 1).

         II. AEDPA LIMITATIONS PERIOD

         The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs 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.

28 U.S.C. § 2244(d)(1)(A)-(D).

         Under subsection (A), Petitioner's limitations period began to run from the date on which the conviction became final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Because Mr. Cohee did not appeal from the February 24, 2014 plea, his conviction became final ten days later on March 6, 2014. See Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). Thus, without tolling, Petitioner's statute of limitations expired on March 6, 2015. Petitioner filed the habeas petition on December 29, 2017, over two years after the limitations period had expired. (ECF No. 1:1). Thus, under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.

         III. STATUTORY TOLLING

         The AEDPA limitations period is tolled while a properly filed application for statepost-conviction or other collateral review with respect to the pertinent judgment or claim is pending. See 28 U.S.C. § 2244(d)(2). Here, Mr. Cohee filed an Application for Post-Conviction Relief on June 27, 2016. (ECF No. 1-3:1). But Petitioner is not entitled to any period of tolling for the application because it was filed after the AEDPA limitations period had already expired. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001); Hubler v. Ortiz, 190 Fed.Appx. 727, 729 (10th Cir. 2006) (“[A] petition for post-conviction relief filed in ...


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