United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE
the Court is the Oklahoma Attorney General's Motion to
Dismiss this 28 U.S.C. § 2254 habeas corpus action as
untimely (Doc. 7). Aubrey Stuart Thomas, through counsel,
filed a Response, arguing the limitation period is subject to
tolling (Doc. 8). Thomas also filed a Motion to Consolidate
this action with his wife's habeas proceeding (Doc. 6).
For the reasons below, the Court will deny the Motion to
Consolidate and dismiss the petition.
case arises from Aubrey Thomas' convictions for child
abuse. According to his adult biological daughter, Thomas
beat his adopted children and failed to intervene when his
wife inflicted more severe abuse. Doc. 2 at 20, 23, 27, and
34. The children testified about similar conduct.
Id. The Oklahoma Department of Human Services
(“DHS”) removed the children from Thomas'
home in late 2011. Doc. 2 at 33. Thomas and his wife were
arrested and charged with child abuse the following year.
Doc. 7-2 at 3-4.
January 21, 2014, a jury convicted Thomas of one count of
enabling child abuse and three counts of child abuse in
violation of Okla. Stat. tit. 21, § 843.5. Doc. 7-2 at
30; see also Doc. 7-1 at 1. Thomas was sentenced to
40 years imprisonment on each count. Doc. 7-1 at 1. Thomas
timely appealed, and the Oklahoma Court of Criminal Appeals
(“OCCA”) affirmed the convictions on December 8,
2015. Id. About fourteen months later, on February
24, 2017, Thomas filed an application for post-conviction
relief in state court. Doc. 7-2 at 39; see also Doc.
7-3 at 3. By an order entered July 27, 2017, the state court
denied the application. Doc. 7-3 at 1, 24. Thomas again
appealed, and the OCCA affirmed the denial on October 31,
2017. Doc. 7-4 at 1.
filed the federal § 2254 petition, through counsel, on
January 26, 2018 (Doc. 2). He raises claims for ineffective
assistance of counsel, due process violations, prosecutorial
misconduct, and government corruption/conspiracy. Doc. 2 at
2-3. Thomas also moved to consolidate this action with his
wife's habeas proceeding, case no. 18-CV-59 JED-FHM (Doc.
6). In response, the Attorney General moved to dismiss the
action as time barred (Doc. 7). The Motion to Dismiss does
not address consolidation.
of actions is governed by Fed.R.Civ.P. 42(a). Rule 42(a)
provides that “[i]f actions before the court involve a
common question of law or fact, the court may …
consolidate the actions.” The decision whether to
consolidate actions is discretionary. See Shump v.
Balka, 574 F.2d 1341, 1344 (10th Cir. 1978). Relevant
considerations include whether consolidation would promote
convenience, expedition, and economy while affording justice
to the parties. Id.; Servants of the Paraclete v. Great
American Insurance Co., 866 F.Supp. 1560, 1572 (D.N.M.
and his wife were tried together, and the same attorney filed
similar pleadings in each federal habeas case.
Compare 18-CV-58 with 18-CV-59.
Nevertheless, the Court finds that consolidation is not
appropriate or necessary. The state habeas proceedings were
separate, and one of the grounds for relief is that defense
counsel should have demanded separate trials based on the
Petitioners' mutually antagonistic defenses. Doc. 2 at
50; see also exhibits to Doc. 7 filed in both cases.
As discussed below, the action is also over because
Thomas' petition is time-barred. The Court will therefore
deny the Motion to Consolidate (Doc. 6).
Timeliness of the Habeas Claims
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. The
one-year limitation period can be extended:
(1) While a properly filed state habeas petition is pending,
(2) Where unconstitutional state action has impeded the
filing of a federal habeas petition, ...