United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
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.
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). 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).
AEDPA LIMITATIONS PERIOD
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).
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.
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 ...