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Hunter v. Bear

United States District Court, N.D. Oklahoma

July 31, 2018

RICKY HUNTER, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Petitioner, a state prisoner appearing pro se, [1] brings this 28 U.S.C. § 2254 habeas corpus action to challenge the judgment and sentence entered against him in the District Court of Craig County, Oklahoma, No. CF-2006-37. Before the Court is respondent's motion to dismiss the petition as time barred under 28 U.S.C. § 2244(d)'s one-year statute of limitation (Dkt. # 9). For the reasons discussed below, the Court finds that respondent's motion to dismiss shall be granted and that the petition for writ of habeas corpus shall be dismissed with prejudice.

         BACKGROUND

         In June 2007, a jury convicted petitioner of making lewd or indecent proposals to a child under 16, in violation of Okla. Stat. tit. 21, § 1123(A)(1) (Version Two) (2003 Supp.) (Count I); and unlawfully using a computer to violate Okla. Stat. tit. 21, § 1123(A)(1), in violation of Okla. Stat. tit. 21, § 1958 (Count II). Dkt. # 10-1 at 1.[2] The state district court sentenced petitioner, on August 20, 2007, to serve 45 years in prison on Count I and 10 years in prison on Count II. Id. Petitioner filed a direct appeal, raising seven propositions of error. Id. at 1-2. By unpublished summary opinion filed October 10, 2008, in No. F-2007-856, the Oklahoma Court of Criminal Appeals (OCCA) affirmed petitioner's conviction on Count I. Id. at 2. However, the OCCA agreed with petitioner's argument that his conviction on Count II violated Oklahoma's statutory provision against multiple punishment. Id. at 2-3. As a result, the OCCA vacated his Count II conviction and sentence and ordered Count II dismissed. Id. at 3. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Dkt. # 1 at 3.

         On February 7, 2011, petitioner filed a motion for transcripts and records at public expense in state district court. Dkt. # 10-2 at 18. The state district court denied petitioner's motion on February 14, 2011, finding the materials had been previously provided. Id. Petitioner then filed a petition for writ of mandamus, asking the OCCA to order the district court to grant him copies of or access to his trial and preliminary hearing transcripts. Dkt. # 10-3. The OCCA declined jurisdiction on March 9, 2011. Dkt. # 10-4. Petitioner filed a notice of intent to appeal on April 27, 2011, but the record does not show that he took any further action to perfect an appeal. Dkt. # 10-2 at 18.

         Petitioner filed an application for post-conviction relief in state district court on October 24, 2016, asserting 12 claims for relief. Dkt. # 10-5. The state district court denied his application on May 8, 2017. Dkt. # 10-6. By unpublished order filed June 9, 2017, in No. PC-2017-140, the OCCA affirmed the denial of post-conviction relief. Dkt. # 10-7. Six days later, petitioner filed a petition for writ of habeas corpus in the District Court of Cleveland County, No. WH-2017-8. Dkt. # 10-8. The state district court denied the petition, finding petitioner filed the challenge to his Craig County conviction in the wrong court and failed to develop any coherent arguments. Dkt. # 10-9.

         Petitioner filed the instant federal habeas petition on July 10, 2017. Dkt. # 1. In response to the petition, respondent filed a motion to dismiss (Dkt. # 9) and supporting brief (Dkt. # 10). Respondent contends that the habeas petition is time barred under § 2244(d)(1)(A)'s one-year statute of limitation. Dkt. # 10 at 1-3. Respondent further contends petitioner has not demonstrated any circumstances that would warrant statutory or equitable tolling of the one-year period. Id. at 3-9.

         In his petition (Dkt. # 1) and his response to the motion to dismiss (Dkt. # 11), Petitioner acknowledges that his petition is untimely. He argues, however, that he is entitled to a later start date for the one-year period under § 2244(d)(1) and that various circumstances support equitable tolling of the one-year period. Dkt. # 1 at 5, 13-14; Dkt. # 11 at 1-2.

         ANALYSIS

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), state prisoners have a one-year limitation period in which to file a federal habeas petition. 28 U.S.C. § 2244(d)(1).[3]Generally, the limitation period begins to run from the date on which a prisoner's conviction becomes final. Id. § 2244(d)(1)(A). It may also commence at a later date under the terms of § 2244(d)(1)(B), (C), and (D). Regardless of which date the one-year limitation period commences, the period is statutorily tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). Because the AEDPA's one-year limitation period is not jurisdictional, the untimeliness of a habeas petition also may be excused for equitable reasons, Holland v. Florida, 560 U.S. 631, 645 (2010), or upon “a credible showing of actual innocence, ” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013).

         A. The petition is untimely under § 2244(d)(1)(A).

         Respondent contends, and the Court finds, that the petition is untimely under § 2244(d)(1)(A). The OCCA affirmed petitioner's conviction as to Count I on October 10, 2008. Dkt. # 10-1. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Dkt. # 1 at 3. Petitioner's conviction therefore became final on January 8, 2009, when the 90-day period for filing a petition for writ of certiorari expired. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (noting state conviction becomes final when “availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elasped or a timely filed petition has been finally denied”). Under § 2244(d)(1)(A), Petitioner's one-year limitation period commenced on January 9, 2009, and expired on January 11, 2010. See United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (applying Fed.R.Civ.P. 6(a) to calculate AEDPA one-year limitation period).[4] Petitioner did not file his federal habeas petition until July 10, 2017, over seven years after his limitation period expired. And, as respondent contends, petitioner is not entitled to statutory tolling of this one-year period because he did not file his first application for post-conviction relief in state court until October 24, 2016. See 28 U.S.C. § 2244(d)(2); Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”). Thus, unless petitioner can demonstrate that he is eligible for a later commencement date or that his circumstances warrant equitable tolling, his petition is time barred.

         B. Petitioner has not demonstrated that an alternative commencement date applies.

         Petitioner appears to suggest that his one-year limitation period began at some later date under either § 2244(d)(1)(B), (d)(1)(C), or (d)(1)(D). See Dkt. # 1 at 14; Dkt. # 11 at 1-2. The Court disagrees.

         1. Section 2244(d)(1)(B)

         First, petitioner contends that state-created impediments prevented him from filing a timely federal habeas petition. Dkt. # 1 at 5, 13-14; Dkt. # 11 at 1. Under § 2244(d)(1)(B), AEDPA's one-year period commences on “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of ...


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