United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
PETITIONER'S ENTITLEMENT TO EQUITABLE TOLLING
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se, brought this action
seeking habeas corpus relief under 28 U.S.C. § 2254.
See Doc. 1. Chief United States District Judge Joe
Heaton then referred the matter to the undersigned Magistrate
Judge for preliminary proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B), (C). See Doc. 4.
Initial Report and Recommendation (Report).
an examination of the petition as required by Rule 4, Rules
Governing Section 2254 Cases in the United States District
Court (Rule 4), the undersigned reported to Chief Judge
Heaton that the petition, see Doc. 1, was
time-barred and recommended its summary dismissal.
See Doc. 9.
Report-as relevant to this Supplemental Report regarding
Petitioner's entitlement to equitable tolling-after
discussing the circumstances under which Petitioner's
federal limitations period might be subject to equitable
tolling and summarizing the governing legal authority,
see Id. at 7-8, the undersigned concluded that
“Petitioner presents no extraordinary circumstance that
prevented his timely pursuit of federal habeas relief.”
Id. at 8. Likewise, the undersigned singled out
Petitioner's “lack of diligence” in filing a
conforming application for post-conviction relief.
Id. Necessarily then, the undersigned reported to
Chief Judge Heaton that Petitioner was not entitled to
equitable tolling of his federal period of limitation.
See Id. at 7-8.
Petitioner's objection to the Report.
timely objection to the Report, Petitioner did not challenge
the undersigned's calculation, see id. at 4,
that his one-year federal period of limitation began to run
on March 6, 2015, and-absent statutory or equitable
tolling-expired on March 7, 2016. See Doc. 12, at 1.
Likewise, Petitioner did not dispute the undersigned's
determination, see Doc. 9, at 4-6, that he was
entitled to statutory tolling for the 166 days his motion for
suspended sentence pended after his federal period of
limitation began to run, thus extending his statutory year to
August 20, 2016. See Doc. 12. Furthermore,
Petitioner conceded, id. at 2, that he was not
entitled to statutory tolling for the time his November 5,
2015, twenty-three-page application for post-conviction
relief was pending in the state trial court before that court
ordered it stricken on November 17, 2015, “for
exceeding [the] page limit.” Id. at 1.
notably, although the undersigned had clearly informed
Petitioner regarding the availability of equitable
tolling-including precisely what he had to show in order to
establish its availability, see Doc. 9, at 7-8, -and
although the undersigned had also clearly informed Petitioner
that he had the opportunity to “address any arguments
related to the statute of limitations issue . . . in an
objection to the report and recommendation, ”
id., at 12, 13, Petitioner made no
reference either to equitable tolling or to any element of
equitable tolling in his objection. See Doc. 12.
Petitioner took issue with the undersigned's conclusion,
see Doc. 9, at 7, that, due to the expiration of
Petitioner's extended period of limitation on August 20,
2016, his subsequent application for post-conviction relief-
which was not filed until August 25, 2016-did not entitle him
to statutory tolling. See Doc. 12. Specifically,
Petitioner asserted that after the state district court
struck his November 5, 2015, application “for exceeding
[the] page limit, ” id. at 1, he
“promptly, in accordance with [the] applicable rule,
resubmitted his application with the required Motion to
Exceed Page Limit of twenty (20) pages. Rule 37 ‘Rules
of the Seventh and Twenty Sixth Judicial
District.'” Id. at 1-2. According to
Petitioner, “the prompt refiling of the application
along with the motion to exceed page limit was a proper
filing by state rules of proce[ ]dure for post conviction
relief submissions.” Id. at 2. He claimed
“[t]his stopped the tolling clock of the deferral court
once again . . . .” Id.
further contended that “[i]t was not until August 5,
2016 that the district court of Oklahoma County denied [his]
motion to exceed the page limit denying [his] post
conviction” and that he “resubmitted his post
conviction, and promptly so by August 25, 2016 with his
application reduced by the three (3) pages no allowed by the
district court.” Id.
Chief Judge Heaton's order declining to accept the
Judge Heaton initially found the undersigned's
“conclusion that petitioner's state applications
for post-conviction review do not provide a basis for
statutory tolling would ordinarily be correct, for
substantially the reasons stated in the Report.” Doc.
13, at 3. But observing that “the Report also concluded
no basis for equitable tolling was shown, ” Chief Judge
Heaton construed Petitioner's objection as one
“tak[ing] issue with that conclusion” and
“essentially argu[ing] that his filing of a request for
leave to exceed the page limit is a ground for equitable
tolling . . . .” Id. Then, on consideration of
that argument, Chief Judge Heaton agreed with it and found
“[a] pro se litigant could reasonably view the
request for leave to exceed the page limit and to, in effect,
reconsider the non-complying application, as something that
needed to be resolved before further filings or proceedings
would be necessary or appropriate.” Id.
Judge Heaton also found: (1) “the timing of the state
court's disposition of the motion for leave was beyond
petitioner's control”; (2) “these
circumstances are sufficiently extraordinary to be a basis
for equitable tolling”; and (3) “it appears that
petitioner promptly and diligently pursued ...