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McKinney v. Byrd

United States District Court, N.D. Oklahoma

June 21, 2018

ALPHIE PHILLIP MCKINNEY, Petitioner,
v.
RAYMOND BYRD, Warden, [1] Respondent.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

         Now before the Court is respondent's motion to dismiss (Dkt. # 10) petitioner's 28 U.S.C. § 2254 habeas petition (Dkt. # 1).

         I.

         On 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. at 1-2.

         Petitioner 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.”[2] Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.

         On 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.

         Petitioner 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.

         II.

         The 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, § 2244(d)(2);
(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).

         Application 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.”[3]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 ...


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