United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE KERN UNITED STATES DISTRICT JUDGE.
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, No. CF-2010-3241. Doc. 1 at
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.
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).
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.
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. 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.
filed the instant federal habeas petition (Doc. 1) in the
United States District Court for the Western District of
Oklahoma on December 2, 2016. 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,
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).
The petition is untimely under § 2244(d)(1)(A).
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
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. 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
Petitioner has not demonstrated that an alternative
commencement date applies.
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 ...