United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
a state prisoner appearing pro se,  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.
September 2009, Petitioner entered blind guilty
pleas 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
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
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 By unpublished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”).
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.
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.
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.
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).
The petition is untimely under § 2244(d)(1)(A).
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)). 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.
Petitioner is not entitled to equitable tolling.
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