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Byford v. Allbaugh

United States District Court, E.D. Oklahoma

March 19, 2018

TIMOTHY G. BYFORD, Petitioner,
v.
JOE M. ALLBAUGH, DOC Director, Respondent.

          OPINION AND ORDER

          Ronald A. White United States District Judge.

         This action is before the Court on Respondent's motion to dismiss Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as barred by the statute of limitations. Petitioner, a state prisoner in the custody of the Oklahoma Department of Corrections, is incarcerated at Cimarron Correctional Facility in Cushing, Oklahoma. He is attacking his conviction in Love County District Court Case Number CF-2006-66A for First Degree Murder, raising one ground for habeas corpus relief:[1]

The state court made an unreasonable determination of facts in light of the evidence, that the petitioner's plea was voluntary, knowing or intelligent, and the petitioner would be entitled to judgment as a matter of law.

(Dkt. 2 at 11).

         Respondent alleges the petition was filed beyond the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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.
(2) The 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         The record shows that on September 10, 2007, Petitioner entered a plea of guilty in No. CF-2006-66A. On November 1, 2007, he was sentenced to life imprisonment without the possibility of parole, and the Judgment and Sentence was entered.[2] Because Petitioner did not seek to timely withdraw his plea or seek a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), the conviction became final on November 12, 2007, ten days after entry of the Judgment and Sentence.[3] See Rule 4.2, Rules of the Court of Criminal Appeals, Okla. Stat. tit. 22, Ch.18, App.; Okla. Stat. tit. 22, § 1051. Pursuant to 28 U.S.C. § 2244(d)(1), Petitioner's statutory year began to run on November 13, 2007, and it expired on November 13, 2008. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011) (the year begins to run the day after the judgment and sentence becomes final). This petition was filed on March 29, 2017, more than eight years after the statutory filing deadline.

         On August 10, 2015, Petitioner filed an application for post-conviction relief and appeal out of time, raising the issue of the validity of his plea. The Love County District Court made the following findings about Petitioner's plea and sentence in its Court Order Denying Application for Post-Conviction Relief:

1. The Trial Court took the Defendant's guilty plea on September 10, 2007. In that transcript the Court finds the Defendant provided the following information in summary form:
A. Defendant agreed he was mentally competent (See Transcript of Guilty Plea p.3. hereinafter (“Tr. Guilty Plea”); B. Defendant acknowledged that the range of punishment for the charge he faced was life, life without parole, or death. (Tr. Guilty Plea p. 4);
C. Defendant acknowledged he knew he had a right to a jury trial, the right to remain silent, the right to see and hear all witnesses called against him and to cross-examine them, the right to call witnesses and hear evidence brought into court at no expense to him, and that a jury must find his guilt to be by evidence which proves his guilt beyond a reasonable doubt. (See Tr. Guilty Plea p. 6);
D. The Defendant acknowledged that if he pled guilty he gave up those rights. (Tr. Guilty Plea p. 6);
E. The Defendant acknowledged he had talked with his attorney, had his advice, and believed his lawyer had effectively assisted him in ...

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