United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
Brandon Ray Ivey, a state inmate appearing pro se,
brings this 28 U.S.C. § 2254 habeas corpus action to
challenge his conviction and sentence entered in Tulsa County
District Court No. CF-2008-5282. Dkt. 1 at 1. Before the
Court is the Oklahoma Attorney General's motion to
dismiss the petition as untimely. Dkt. 8. For the reasons
discussed below, the petition will be dismissed.
case arises from a failed robbery attempt involving Ivey and
three co-conspirators. Ivey pled nolo contendere on February
24, 2010 to attempted robbery with a firearm and assault and
battery with a dangerous weapon in violation of Okla. Stat.
tit. 21, §§ 801 and 645. See Dkt. 9-1 at
1, 6. The state court sentenced Ivey to 25 years'
imprisonment for the robbery conviction and 10 years'
imprisonment for the assault conviction, to be served
concurrently. Id. The state court signed the
Judgment and Sentence on February 24, 2010. Id. Ivey
did not appeal. See Dkt. 1 at 2.
the following year, Ivey filed two pro se requests
to disturb his conviction. His first request, a letter dated
April 2, 2010, sought to withdraw the plea. See Dkt.
9-2. The state court denied the request on April 7, 2010.
Id. Ivey's second motion, filed February 22,
2011, requested a sentence modification pursuant to Okla.
Stat. tit. 22, § 982a. See Dkt. 9-3. The state
court denied that motion on March 4, 2011. See Dkt.
9-4. Ivey did not seek any additional substantive relief for
the next 17 months. See Docket Activity in No.
August 7, 2012, Ivey renewed his efforts and filed another
pro se motion to withdraw his plea. See
Dkt. 9-5. Ivey then filed four supplemental pro se
pleadings which, collectively, challenge his plea,
conviction, and sentence. See Dkts. 9-6 and 9-7;
Letters dated Jan. 10, 2013 and Jan. 25, 2013 in No.
CF-2008-5282. The state court focused on the last pleading,
which was the only formal application for post-conviction
relief, and denied relief by an order entered January 15,
2014 (State Habeas Order). See Dkt. 9-8. Ivey
continued to challenge his conviction through a series of
handwritten motions, letters, and other filings. See
Docket Activity in No. CF-2008-5282.
2016, Ivey experienced limited success. He filed an
application for post-conviction relief and to file an
untimely appeal on July 25, 2016. The application
demonstrated Ivey never received a copy of the State Habeas
Order. See App. and Exhibits filed July 25, 2016 in
No. CF-2008-5282. The state court recommended an extension of
time to appeal the State Habeas Order but denied all other
relief. See Order entered Dec. 7, 2016 in No.
CF-2008-5282. The Oklahoma Court of Criminal Appeals agreed
and granted the extension by an order entered April 12, 2017.
See Mandate entered in No. CF-2008-5282. The
appellate court later dismissed the proceedings for failure
to prosecute. See Order Dismissing Post-Conviction
Appeal entered July 21, 2017 in No. CF-2008-5282.
filed the instant federal habeas petition on September 15,
2017. See Dkt. 1. He contends trial counsel was
ineffective; his plea was not voluntary or knowing; and the
trial court violated his right to due process. Id.
at 3-5. In its motion to dismiss (Dkt. 8) and supporting
brief (Dkt. 9), the Attorney General contends Ivey's
petition is time barred under 28 U.S.C. § 2244(d).
Construed liberally, Ivey's response appears to seek
equitable tolling. See Dkt. 10, supplemented by Dkt.
He contends his mental illnesses prevented him from timely
prosecuting an appeal or state habeas petition. Id.
He also asserts he did not understand how to prosecute his
appeal of the State Habeas Order. See Dkt. 10 at 1.
Antiterrorism and Effective Death Penalty Act (AEDPA)
establishes a one-year limitation period for habeas corpus
petitions. 28 U.S.C. § 2244(d). The limitation period
generally begins to run from the date on which a
prisoner's conviction becomes final. See 28
U.S.C. 2244(d)(1)(A). The one-year limitation period can be
(1) While a properly filed state habeas petition is pending,
(2) Where unconstitutional state action has impeded the
filing of a federal habeas petition, § 2244(d)(1)(B);
(3) Where a new constitutional right has been recognized by
the Supreme Court, § 2244(d)(1)(C); or
(4) Where the factual basis for the claim could not have been
discovered until later, ...