United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
a state prisoner appearing pro se,  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.
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. 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unpublished summary opinion filed October 10, 2008, in No.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.
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.
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.
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.
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.
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).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).
The petition is untimely under § 2244(d)(1)(A).
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). 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
Petitioner has not demonstrated that an alternative
commencement date applies.
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.
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 ...