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Ivey v. Yates

United States District Court, N.D. Oklahoma

May 1, 2018

BRANDON RAY IVEY, Petitioner,
v.
JAMES YATES, Warden, [1] Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE

         Petitioner 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.

         I. Background

         This 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.

         During 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. CF-2008-5282.[2]

         On 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.

         In 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.

         Ivey 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. 13.[3] 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.

         II. Analysis

         The 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 extended:

(1) While a properly filed state habeas petition is pending, § 2244(d)(2);
(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, ...

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