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Thomas v. Bryant

United States District Court, N.D. Oklahoma

May 15, 2018

AUBREY STUART THOMAS, Petitioner,
v.
JASON BRYANT, Warden, Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         This 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.

         On 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.

         Thomas 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.

         II. Consolidation

         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. 1994).

         Thomas 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).

         III. Timeliness of the Habeas Claims

         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. 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, ...

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