United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is respondent's motion to dismiss (Dkt.
# 10) petitioner's 28 U.S.C. § 2254 habeas petition
(Dkt. # 1).
August 19, 2013, Alphie Phillip McKinney (petitioner) was
convicted of various drug charges following a jury trial in
Tulsa County District Court, No. CF-12-791. The charges
include: (a) Count I: trafficking in illegal drugs (cocaine)
after conviction of a felony in violation of Okla. Stat. tit.
63, § 2-415; (b) Counts II, III, and V: possession of
controlled dangerous substances (methylone, marijuana, and
alprazolam, respectively) after conviction of a felony in
violation of Okla. Stat. tit. 63, § 2-402; (c) Count IV:
possession of a controlled dangerous substance without a tax
stamp after conviction of a felony in violation of Okla.
Stat. tit. 68, § 450.1; and (e) Count VI: possession of
drug paraphernalia in violation of Okla. Stat. tit. 63,
§ 2-405. See Dkt. # 11-1, at 1. The state court
sentenced petitioner to 32 years imprisonment. Id.
timely appealed. On December 17, 2014, the Oklahoma Court of
Criminal Appeals (OCCA) affirmed, with the exception of
Counts III and V. See Dkt. # 11-1, at 11. The OCCA
reversed and remanded those convictions (Counts III and V)
with instructions to dismiss. Id. The state court
dismissed Counts III and V on December 30, 2014. See
No. CF-12-791, docket text entered 12-30-2014 and titled
“CTFREE.” Petitioner did not file a petition for
writ of certiorari with the United States Supreme Court.
October 21, 2016, petitioner filed an application for
post-conviction relief in Tulsa County District Court.
See Dkt.# 11-2. The state court denied the
application on April 10, 2017. See Dkt. # 11-3 at 9.
Petitioner appealed, and the OCCA affirmed on August 29,
2017. See Dkt. # 11-4.
filed his 28 U.S.C. § 2254 habeas petition on December
6, 2017. See Dkt. # 1. In the section addressing
timeliness of the petition, petitioner entered
“N/A.” Id. at 13. On February 8, 2018,
respondent filed a motion to dismiss (Dkt. # 10) and
supporting brief (Dkt. # 11). Respondent contends that
petitioner's petition is time-barred under 28 U.S.C.
§ 2244(d). Petitioner filed a response (Dkt. # 12), and
no reply has been filed. The matter is now fully briefed.
Antiterrorism and Effective Death Penalty Act (AEDPA)
establishes a one-year limitation period for habeas corpus
petitions. See 28 U.S.C. § 2244(d). The
limitation period generally begins to run from the date on
which a prisoner's conviction becomes final. See
28 U.S.C. § 2244(d)(1)(A). 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, § 2244(d)(1)(B);
(3) Where a new constitutional right has been recognized by
the Supreme Court, § 2244(d)(1)(C); or
(4) Where the factual basis for the claim could not have been
discovered until later, § 2244(d)(1)(D).
of § 2244(d) in this case shows that the petition was
not filed within the one-year limitation period. The
challenged convictions were affirmed on December 17, 2014,
and became final on March 17, 2015, when the
“ninety-day time period for filing a certiorari
petition with the United States Supreme Court
expired.”Harris v. Dinwiddie, 642 F.3d
902, 906 n. 6 (10th Cir. 2011). See also Locke v.
Saffle, 237 F.3d 1269, 1271 (10th Cir. 2001)
(“[F]or purposes of § 2244(d)(1)(A) the judgment
is not final and the one-year limitation period for filing
for federal post-conviction relief does not begin to run
until . . . after the time for filing a petition for
certiorari with the Supreme Court has ...