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Ramirez v. Allbaugh

United States District Court, W.D. Oklahoma

June 5, 2018

JEFFREY RAMIREZ, Petitioner,
v.
JOE ALBAUGH, Respondent.

          SUPPLEMENTAL REPORT AND RECOMMENDATION PETITIONER'S ENTITLEMENT TO EQUITABLE TOLLING

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         I. History.

         Petitioner, a state prisoner appearing pro se, brought this action seeking habeas corpus relief under 28 U.S.C. § 2254. See Doc. 1.[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.

         A. Initial Report and Recommendation (Report).

         Following 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.

         In that 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.

         B. Petitioner's objection to the Report.

         In a 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.

         And 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.

         Instead, 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.

         Petitioner 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.

         C. Chief Judge Heaton's order declining to accept the Report.

         Chief 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.

         Chief 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 ...


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