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Hayes v. Bear

United States District Court, W.D. Oklahoma

May 21, 2018

LEROY HAYES, Petitioner,
v.
WARDEN BEAR, Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner appearing pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. See Doc. 1.[1] United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 5.

         After a careful examination of the petition and its two attached exhibits as required by Rule 4, Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends the summary dismissal of the instant petition, Doc. 1, as time-barred. See 28 U.S.C. § 2244(d)(1).

         I. Petitioner's claims.

         Petitioner filed this Petition on April 19, 2018, [2] seeking federal relief from the convictions and life imprisonment sentences imposed on April 11, 1996, after he entered blind pleas of guilty and no contest[3] to multiple counts of “sodomy[, ] lewd acts[, ] pornography[, and] solicitation for murder” in Oklahoma County District Court, Case No. CF-1995-3870.[4] Doc. 1, at 1.

         Petitioner sets out four “ground[s] on which [he] claim[s] that [he is] being held in violation of the Constitution, laws, or treaties of the United States.” Id. at 5. In Ground One, he maintains: “Apr. 6th, 2018, 10th Cir. in 18-6060 - held - no requirement for permission to file a 2nd 2254 was needed; as this is a 1st one.” Id. at 5. As Ground Two, Petitioner asserts that “[a]ll sentences have been discharged under Okla. uniform jury instruction 10-13-B, and 1997 legislative definition.” Id. at 6. He claims in Ground Three that the “state court lacked jurisdiction over venue, or subject-matter, in this case” because his crime “was committed by an Indian, on an Indian, in Indian country . . . .” Id. at 8. And in Ground Four, Petitioner contends the “state court lacked jurisdiction when it failed to inform Petitioner of his federal rights and get a waivor” regarding his “right to a grand jury indictment.” Id. at 9. He avers that he has exhausted his state remedies on each ground. See Id. at 5, 7, 8, 10.

         Petitioner asks this Court to “[r]everse for a hearing or new trial; or grant release as state court lacked jurisdiction.” Id. at 14 (quotation marks omitted).

         II. Screening.

         Rule 4 requires the court to review habeas petitions promptly and to summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” This rule allows the court to sua sponte raise the timeliness of a petition for writ of habeas corpus if untimeliness is “clear from the face of the petition.” Kilgore v. Att'y Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008); Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”).

         “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he may present his position by filing an objection to the Report and Recommendation. Further, when raising the issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred.” Id. (internal quotation marks omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. 2007) (explaining Day).

         III. Analysis.

         A. Timeliness under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

         The AEDPA establishes a one-year period of limitation for a habeas petitioner in state custody to file his petition and, in addition, establishes the date that one-year period begins to run:

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 ...

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