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Tarkington v. Martin

United States District Court, W.D. Oklahoma

January 24, 2019

ADRIAN ADAM TARKINGTON, Petitioner,
v.
JIMMY MARTIN, Warden, [1] Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, appearing pro se, [2] brings this action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Doc. 1.[3] 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), (C).

         Respondent 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.

         I. Background.

         Petitioner 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.

         II. Analysis.

         A. Limitations period.

         The 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).

         Petitioner filed his petition seeking federal habeas relief on June 21, 2018.[4] 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.

         B. Statutory tolling.

         Statutory 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 requirements).

         Post-conviction “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 omitted).

         On 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.

         On 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. ...


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