United States District Court, W.D. Oklahoma
HEATON CHIFE U.S. DISTRICT JUDGE
Carie Rachelle Walker, Jr., a state prisoner serving a life
sentence for murder, filed this action pursuant to 28 U.S.C.
§ 2254 seeking habeas relief. Consistent with 28 U.S.C.
§ 636(b)(1)(B) and (C), the matter was referred to
Magistrate Judge Bernard M. Jones for initial proceedings. He
recommends that a motion to dismiss filed by respondent be
granted on the ground the petition is time-barred.
Petitioner, who is represented by counsel, has filed an
objection. The court concludes the petition was not filed
within the time limitations imposed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) and
should be dismissed.
was convicted by a jury of first degree murder and sentenced
to life imprisonment with the possibility of parole on
September 30, 1996. She was sixteen at the time of the
offense. Petitioner appealed her conviction and the Oklahoma
Court of Criminal Appeals (“OCCA”) affirmed the
judgment and sentence of the district court on May 6, 1998.
Petitioner did not file an application for post-conviction
relief until September 21, 2017. She sought state habeas
relief contending that her sentence, based on an act she
committed as a juvenile, violates the Eighth Amendment of the
United States Constitution and is subject to collateral
attack. The district court denied petitioner's
application and the OCCA affirmed the denial. In its
decision, the appellate court agreed that petitioner's
challenge to her sentence was not procedurally barred.
However, the court also agreed with the district court's
analysis that petitioner's claim was without merit
because “[p]etitioner was not sentenced to life without
the possibility of parole.” Doc. #1-1, p. 2.
then filed a federal habeas petition here, asserting one
ground for relief. She contends the Supreme Court has held
that if a state imposes a life sentence on a juvenile
offender it must provide him or her with some realistic
opportunity to obtain release before the end of that term.
Notwithstanding the four parole hearings she has already
concededly had, petitioner claims Oklahoma's parole
system does not provide the required “realistic
magistrate judge did not address the merits of the petition
as he determined petitioner failed to file it within
AEDPA's one-year limitations period. Petitioner contends
the petition is not time-barred because of an intervening
change in the law applicable to juvenile sentences.
has a 1-year limitations period, which begins to run on the
latest of the following: (A) the date on which a state court
judgment becomes final; (B) the date an unconstitutional
state-created impediment is removed; (C) the date the Supreme
Court newly recognizes a constitutional right; or (D) the
date on which the factual predicate of claims could have been
discovered through due diligence. See 28 U.S.C.
§ 2244(d)(1)(A)-(D). The magistrate judge noted that
while the parties agree that only § 2244(d)(1)(D) is
implicated here, they disagree on the date the provision was
triggered. Petitioner contends the statute began to run when
the Supreme Court decided Montgomery v. Louisiana,
136 S.Ct. 718 (2016), while respondent claims it commenced
when the Supreme Court decided Miller v. Alabama,
567 U.S. 460 (2012). In Miller the Supreme Court
held that “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of
parole for juvenile offenders.” Miller, 567
U.S. at 479. In Montgomery the Court made
Miller's prohibition retroactive.
Montgomery, 136 S.Ct. at 734. Relying on an earlier
Supreme Court decision, Dodd v. United States, 545
U.S. 353 (2005), the magistrate judge concluded the
limitations period applicable to the petition began when the
Supreme Court decided Miller.
Dodd the Court addressed whether AEDPA's
limitations period begins to run on the date when the Court
“‘initially recognized' the right asserted in
an applicant's 2255 motion, or whether, instead, it is
the date on which the right is ‘made
retroactive[e].'” Dodd, 545 U.S. at
354-55. The Court reviewed the statutory language and
concluded it “settle[d] this dispute.”
Id. at 357. AEDPA provides that § 2255
applicants are given one year from “the date on which
the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review.” 28 U.S.C. § 2255(f)(3);
see § 2244(d)(1)(C). The Court stated that the
text “unequivocally identifies one, and only one, date
from which the 1-year limitation period is measured . . .
.” Id. “An applicant has one year from
the date on which the right [s]he asserts was initially
recognized by [the] Court.” Id.
light of Dodd and decisions from other jurisdictions
applying Dodd to bar claims brought by petitioners
contending that their juvenile, life-without-parole sentences
were unconstitutional, the magistrate judge concluded the
one-year limitations period applicable to petitioner's
claim began to run when Miller was decided on June
25, 2012. Unless the period was tolled, he determined it
expired one year later, on June 25, 2013, and operated to bar
magistrate judge decided there was no basis for either
statutory or equitable tolling. Because petitioner first
sought post-conviction relief in state court after
AEDPA's one-year limitations period had expired, the
magistrate judge determined she is not entitled to statutory
tolling. See 28 U.S.C. §244(d)(2). He also
concluded petitioner is not entitled to equitable tolling,
which requires a showing that the petitioner (1) “has
been pursuing [her] rights diligently, and (2) that some
extraordinary circumstance stood in [her] way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (internal quotation marked omitted). The
magistrate judge was not persuaded by petitioner's
assertions that she had diligently pursued her rights, when
she waited over four years after the Miller decision
and twenty months after the Montgomery decision to
seek post-conviction relief.
objection, petitioner challenges the magistrate judge's
application of Dodd to her claim. However, her
argument is unclear and unconvincing. The court is not
unsympathetic to petitioner's situation, but is bound by
Dodd, where the Court “recognize[d] the
potential for harsh results in some cases, ” but noted
that it was “not free to rewrite the statue that
Congress has enacted.” Dodd, 545 U.S. at 359.
effort to demonstrate that she is entitled to equitable
tolling is not persuasive and is a poorly disguised argument
on the merits. While petitioner's delay in filing her
petition after Miller was decided is understandable,
she offers no explanation as to why she waited more than a
year and a half after the Supreme Court decided
Montgomery to seek post-conviction relief.
“‘Equitable tolling is a rare remedy,' and
[petitioner] has done next to nothing to show that [her]
situation presents the kind of ‘unusual
circumstances' that would warrant granting relief.”
Sandoval v. Jones, 447 Fed.Appx. 1, at *2 (June 14,
2011) (quoting Wallace v. Kato, 549 U.S. 384, 396
(2007); see Miller v. Marr, 141 F.3d 976, 978 (10th
Cir. 1998) (rejecting a habeas petitioner's request for
equitable tolling where he “provided no specificity
regarding the alleged lack of access and the steps he took to
diligently pursue his federal claims”).
the court adopts Magistrate Judge
Jones's Report and Recommendation and
grants respondent's motion to dismiss
[Doc. #7]. The action is dismissed with prejudice. A
certificate of appealability is denied as the court concludes
petitioner has not made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §