Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Holt v. Allbaugh

United States District Court, N.D. Oklahoma

February 6, 2018

ROGER MARIS HOLT, Petitioner,
v.
JOE ALLBAUGH, Director, Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Petitioner, a state prisoner appearing pro se, [1] brings this 28 U.S.C. § 2254 habeas corpus action to challenge the constitutionality of his convictions and sentences in the District Court of Tulsa County, Oklahoma, Case No. CF-2009-1240. Doc. 1 at 1. Before the Court is Respondent's motion to dismiss the petition as time barred under 28 U.S.C. § 2244(d) (Doc. 6). Respondent filed a brief in support of his motion (Doc. 7), and Petitioner filed a response (Doc. 8). For the reasons discussed below, the Court finds that Respondent's motion to dismiss shall be granted and that the habeas petition shall be dismissed with prejudice.

         BACKGROUND

         In September 2009, Petitioner entered blind guilty pleas[2] on two charges in Tulsa County District Court, Case No. CF-2009-1240: (1) endeavoring to manufacture a controlled drug (methamphetamine) after two or more previous convictions, in violation of Okla. Stat. tit. 63, § 2-401(G) (2005 Supp.); and first degree arson after two or more previous convictions, in violation of Okla. Stat. tit. 21, § 1401 (2001). Doc. 1 at 1; Doc. 7-1 at 1.[3] The state district court accepted the pleas and scheduled the matter for sentencing. Doc. 7-1 at 1. In October 2009, the court imposed a sentence of 25 years' imprisonment for each conviction and ordered the sentences to be served concurrently. Id.

         Two days after the sentencing hearing, Petitioner moved to withdraw his pleas, alleging that his pleas were not knowing and voluntary because he believed that he had agreed to plead guilty to second-degree arson rather than first-degree arson. See Doc. 2 at 55-58. The state district court appointed new counsel to represent Petitioner, held a hearing on the motion, and denied relief. Id. at 2, 51. Petitioner then filed a petition for writ of certiorari with the Oklahoma Court of Criminal Appeals (OCCA). Id. at 2; see Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (providing procedures for commencing certiorari appeal). In his petition of error, Petitioner asserted that (1) his plea was not knowing and voluntary, and (2) his convictions violated state and federal constitutional prohibitions against double punishments. Doc. 2 at 54, 59. By unpublished summary opinion filed August 4, 2010, the OCCA affirmed the district court's denial of Petitioner's motion to withdraw his pleas. Doc. 7-1. First, the OCCA determined that the record demonstrated Petitioner's pleas were knowing and voluntary and concluded that the district court therefore did not abuse its discretion in denying his motion to withdraw the pleas. Id. at 2-3. Next, the OCCA determined that Petitioner waived his double-punishment claim by failing to present it in his motion to withdraw the pleas. Id. at 3; see Rule 4.2(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (providing that “[n]o matter may be raised in the petition for a writ of certiorari unless the same has been raised in the application to withdraw the plea”).

         Petitioner pursued additional state remedies after the OCCA denied his certiorari appeal. First, on March 16, 2011, Petitioner filed a pro se motion for judicial review of his sentence. Doc. 7-2 at 3. The state district court denied the motion on March 17, 2011. Id. Next, on May 20, 2014, Petitioner filed three separate pro se pleadings which, collectively, asserted four propositions of error. See Doc. 7-4 at 3-4. The state district court construed the pleadings as one application for post-conviction relief and denied relief by order filed March 12, 2015. Id. at 1, 3-4. Petitioner did not appeal that order. Doc. 2 at 3; Doc. 7 at 2. Finally, on February 8, 2016, Petitioner filed a second application for post-conviction relief, asserting six propositions of error. See Doc. 2 at 75, 77-78. The state district court denied Petitioner's second application for state post-conviction relief by order filed July 19, 2016. Id. at 75. Petitioner appealed, and the OCCA affirmed the denial of relief by order filed November 4, 2016. See Doc. 2 at 83-85.

         Petitioner filed the instant federal habeas petition (Doc. 1), along with a supporting brief (Doc. 2), on May 4, 2017. Liberally construing Petitioner's supporting brief, the Court finds that Petitioner seeks federal habeas relief on the following grounds: (1) his guilty pleas were not knowing and voluntary in violation of the Due Process clause, see Doc. 2, at 9-14; (2) his convictions constitute multiple punishments for the same offense in violation of the Double Jeopardy clause, see Id. at 14-19; (3) he was denied his Sixth Amendment right to the effective assistance of plea counsel, see Id. at 20-27; and (4) he was denied his Sixth Amendment right to the effective assistance of appellate counsel, see Id. at 27-28.

         In response to the petition, Respondent filed a motion to dismiss (Doc. 6) and supporting brief (Doc. 7), arguing that the petition is time barred under § 2244(d)(1)'s one-year statute of limitation. Petitioner filed a response to the motion (Doc. 8). Petitioner acknowledges that his petition is untimely, but he asserts that he is entitled to either equitable tolling of, or an equitable exception to, the one-year limitation period. See Doc. 1 at 13-14; Doc. 2 at 1, 33; Doc. 8 at 2-6.

         ANALYSIS

         The Antiterrorism and Effective Death Penalty Act (AEDPA), establishes a one-year limitation period for habeas corpus petitions. 28 U.S.C. § 2244(d). In general, the limitation period begins to run from the date on which a prisoner's conviction becomes final. See Id. § 2244(d)(1)(A), But it may also commence at a later date under the terms of § 2244(d)(1)(B), ©, and (D). Regardless of which date the one-year limitation period commences, the period is statutorily tolled for “[t]he 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.” 28 U.S.C. § 2244(d)(2). And, because AEDPA's one-year limitation period is not jurisdictional, the untimeliness of a habeas petition may be excused through equitable tolling, Holland v. Florida, 560 U.S. 631, 645 (2010), or may be “overcome” through “a credible showing of actual innocence, ” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).

         A. The petition is untimely under § 2244(d)(1)(A).

         Application of § 2244(d)(1)(A) supports Petitioner's concession that his habeas petition is untimely. Because the OCCA affirmed Petitioner's convictions on August 4, 2010, see Doc. 7-1, his convictions became final on November 2, 2010, when the 90-day period for filing a petition for writ of certiorari in the United States Supreme Court expired. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (noting that conviction is “final” under § 2244(d)(1)(A) when 90-day period for filing certiorari petition expires); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (same). As a result, Petitioner's one-year limitation period commenced on November 3, 2010, and expired on November 3, 2011. See United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (applying Fed.R.Civ.P. 6(a) to calculate AEDPA limitation period). Because Petitioner filed both of his applications for state post-conviction relief after his one-year period expired, i.e., on May 20, 2014, and February 8, 2016, neither application served to toll the limitation period. See 28 U.S.C. 2244(d)(2); Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001) (noting that applications for state post-conviction relief filed after expiration of one-year limitation period have no tolling effect under § 2244(d)(2)).[4] Thus, unless Petitioner can demonstrate that he is entitled to either equitable tolling of, or an equitable exception to, AEDPA's limitation period, his habeas petition is time barred.

         B. Petitioner is not entitled to equitable tolling.

         Petitioner appears to seek equitable tolling on four grounds: (1) he was not liked by other inmates, got into fights, and was placed on lock down, (2) he has a limited education and limited understanding of the law, (3) he has “been shipped to five different prison[s], ” over the course of his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.