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Wooton v. Martin

United States District Court, N.D. Oklahoma

February 14, 2018

JIMMY MARTIN, Warden, [1] Respondent.



         Petitioner, a state prisoner appearing pro se, [2] 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, No. CF-2010-3241. Doc. 1 at 1.[3] Before the Court is Respondent's motion to dismiss the petition as time barred under 28 U.S.C. § 2244(d)'s one-year statute of limitation (Doc. 19). For the reasons discussed below, the Court finds that Respondent's motion to dismiss shall be granted and that the petition for writ of habeas corpus shall be dismissed with prejudice.


         In December 2011, Petitioner pleaded guilty to eight counts of possessing child pornography, in violation of Okla. Stat. tit. 21, § 1024.2. Doc. 1 at 1; Doc. 20-1; Doc. 20-2 at 3-6. On January 24, 2012, the state district court adjudged Petitioner guilty, imposed eight, consecutive five-year prison sentences, and suspended three of the sentences, resulting in a controlling sentence of 40 years' imprisonment with the last 15 years suspended. Doc. 20-1; Doc. 20-2 at 7-8. Petitioner did not seek to withdraw his pleas or file a certiorari appeal with the Oklahoma Court of Criminal Appeals (OCCA).

         On June 14, 2012, Petitioner filed an application for post-conviction relief in state court, asserting two propositions of error. Doc. 20-3. By order filed March 14, 2013, the state district court rejected Petitioner's first error on the merits, found his second error waived, and denied Petitioner's application for post-conviction relief. Doc. 20-5. Petitioner did not file a post-conviction appeal with the OCCA.

         On May 15, 2015, Petitioner filed a second application for post-conviction relief in state court, asserting 11 propositions of error. Doc. 1 at 3; Doc. 20 at 2; Doc. 1-1 at 51-52.[4] By order filed September 23, 2015, the state district court denied the application finding all of the alleged errors were procedurally barred. Doc. 1-1 at 49-55. Petitioner timely filed a post-conviction appeal, and the OCCA affirmed the denial of post-conviction relief by order filed December 30, 2015. See Doc. 22 at 40.

         Petitioner filed the instant federal habeas petition (Doc. 1) in the United States District Court for the Western District of Oklahoma on December 2, 2016.[5] The case was transferred to this Court on April 13, 2017. See Doc. 13. In response to the petition, Respondent filed a motion to dismiss (Doc. 19) and supporting brief (Doc. 20), asserting that the petition is time barred under § 2244(d)(1)'s one-year statute of limitation. Petitioner filed a response to the motion (Doc. 21), and two supplements to his response (Docs. 22, 26).


         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), state prisoners have a one-year limitation period in which to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). In general, the limitation period begins to run from the date on which a prisoner's conviction becomes final. Id. § 2244(d)(1)(A). But it may also commence at a later date under the terms of § 2244(d)(1)(B), (C), 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.” Id. § 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).

         Respondent contends, and Petitioner concedes, that his petition is untimely under § 2244(d)(1)(A). The Court agrees. Because Petitioner did not move to withdraw his guilty pleas, his convictions became final 10 days after his January 24, 2012 sentencing hearing, or on February 3, 2012. See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2018) (requiring defendant to file application to withdraw guilty plea within 10 days of sentencing as prerequisite to commencing certiorari appeal). As a result, Petitioner's one-year limitation period for any federal habeas claim challenging his convictions began to run on February 4, 2012. See United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (applying Fed.R.Civ.P. 6(a) to calculate AEDPA deadline).

         Petitioner's one-year period was statutorily tolled beginning on June 14, 2012, when he filed his first application for post-conviction relief in state court. See 28 U.S.C. § 2244(d)(2). That application remained pending until March 14, 2013, when the state district court denied relief. Doc. 20-5.[6] Petitioner's one-year period began to run again on April 14, 2013, the day after his 30-day deadline to file a post-conviction appeal expired. See Gibson v. Klinger, 232 F.3d 799, 807 (10th Cir. 2000) (affording petitioner thirty days to file post-conviction appeal as provided by state law in calculating AEDPA deadline even though petitioner did not file post-conviction appeal). At that point, Petitioner had 233 days, or until December 2, 2013, to timely file his federal habeas petition. Petitioner filed his habeas petition three years later, on December 2, 2016. Doc. 1 at 49. And because Petitioner filed his second application for post-conviction relief on May 15, 2015, after his one-year period under § 2244(d)(1)(A) expired, the second application had no tolling effect. 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 eligible for a later commencement date for his one-year limitation period or that his circumstances warrant equitable tolling, his petition is time barred.

         B. Petitioner has not demonstrated that an alternative commencement date applies.

         In his response to the motion to dismiss, Petitioner contends that his one-year period commenced on August 1, 2014, under either § 2244(d)(1)(B) or (d)(1)(D), because “the issues presented in the [habeas] petition were unknown to the Petitioner, and could not be discovered or researched until Petitioner was finally granted ‘meaningful' access to the law library recourses [sic] in August of 2014.” Doc. 21 at 1-3. He further contends that “[r]ecalculating the AEDPA deadline based on a finding of Removed Impediment of August of 2014 (when Petitioner was moved to an open pod with full access to the ...

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