United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.
appearing pro se,  brings this action pursuant to 28 U.S.C.
§ 2254 for a writ of habeas corpus. Doc.
United States District Judge Scott L. Palk has referred the
matter to the undersigned Magistrate Judge for initial
proceedings consistent with 28 U.S.C. § 636(b)(1)(B),
seeks dismissal of the action, maintaining it is time-barred.
Docs. 12, 13. Petitioner opposes the motion. Doc. 14. After
careful review of the parties' arguments and submissions
on the issue, the undersigned recommends the dismissal of the
action as untimely.
was convicted and sentenced in Oklahoma County District
Court, No. CF-2012-7249. Doc. 1, at 1. He appealed the
conviction to the Oklahoma Court of Criminal Appeals, No.
F-2014-537, and his conviction was affirmed by the OCCA on
November 17, 2015. Doc. 13, Ex. 1. After the OCCA affirmed
his conviction, Petitioner did not seek post-conviction
relief in state court nor did he file a petition for writ of
certiorari with the United States Supreme Court. See
Doc. 1, at 2-3.
Antiterrorism and Effective Death Penalty Act of 1996
established a one-year limitations period during which an
inmate in state custody can file a federal habeas petition
challenging a state conviction. See 28 U.S.C. §
2244(d)(1). The limitation period generally runs from the
date the judgment becomes “final, ” as provided
by § 2244(d)(1)(A). See Preston v. Gibson, 234
F.3d 1118, 1120 (10th Cir. 2000). Under Supreme Court law,
“direct review” does not conclude until the
availability of direct appeal to the state courts and request
for review to the Supreme Court have been exhausted.
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The
Rules of the Supreme Court allow ninety days from the date of
the conclusion of direct appeal to seek certiorari. U.S. Sup.
Ct. Rule 13.1. “If a prisoner does not file a petition
for writ of certiorari with the United States Supreme Court
after his direct appeal, the one-year limitation period
begins to run when the time for filing a certiorari petition
expires.” United States v. Hurst, 322 F.3d
1256, 1259 (10th Cir. 2003) (internal quotations omitted).
The one-year period of limitation begins to run the day after
a conviction is final. See Harris v. Dinwiddie, 642
F.3d 902, 906-07 n.6 (10th Cir. 2011).
filed his petition seeking federal habeas relief on June 21,
2018. As Petitioner sought no writ of certiorari
in the Supreme Court, his conviction became final on February
15, 2016, when the ninety-day time period for filing a
certiorari petition expired. See Locke v. Saffle,
237 F.3d 1269, 1273 (10th Cir. 2001). The AEDPA's
one-year period of limitation began to run the following day,
February 16, 2016, and expired one year later, on February
16, 2017. See Haws v. Jorgenson, 219 Fed.Appx. 781,
783 (10th Cir. 2007). Absent statutory or equitable tolling
of the limitation period, this petition-filed on June 21,
2018-is untimely by over sixteen months.
tolling is available when, during the one-year limitation
period, a petitioner properly files a petition for collateral
review in the state trial court. See 28 U.S.C.
§ 2244(d)(2). “The 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 shall not be counted toward any
period of limitation . . . .” 28 U.S.C. §
2244(d)(2) (emphasis added). To meet the “properly
filed” requirement, an inmate must comply with state
procedural requirements. Habteselassie v. Novak, 209
F.3d 1208, 1210-11 (10th Cir. 2000) (defining a
“properly filed” application as “one filed
according to the filing requirements for a motion for state
post-conviction relief” and giving examples of such
“proceedings in Oklahoma district courts are considered
commenced, and thus filed for purposes of Oklahoma's
post-conviction statute, when a properly verified application
for post-conviction relief is delivered to the proper
district court for the purpose of filing.” Burger
v. Scott, 317 F.3d 1133, 1140 (10th Cir. 2003) (internal
quotation marks and emphasis omitted). See also Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (“[A]n application
is properly filed when its delivery and acceptance
are in compliance with the applicable laws and rules
governing filings . . . prescrib[ing], for example, the form
of the document . . . .”) (internal quotation marks
November 10, 2016, Petitioner applied for post-conviction
relief in state district court. Doc. 13, Ex. 2, at 21. On the
same date, Petitioner also filed a motion for leave to exceed
the page limit for the application for post-conviction
relief. Id. At this time Petitioner had ninety-eight
days-until February 16, 2017-in which to file his habeas
petition absent any tolling.
November 14, 2016, the State filed a motion to strike
Petitioner's post-conviction application because it
exceeded the page limit and argued that Petitioner's
motion to exceed the page limit should be denied because
Petitioner did not seek leave to exceed the page limit prior
to filing his application. Id. Ex. 3. On October 27,
2017, the state district court granted the State's motion
to strike Petitioner's application for post-conviction
relief, finding that Petitioner's application did
“not comply with the Rules of the District Court,
Seventh Judicial District. ...