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Tarkington v. Martin

United States District Court, W.D. Oklahoma

February 26, 2019

ADRIAN ADAM TARKINGTON, Petitioner,
v.
JIMMY MARTIN, Warden, Respondent.

          ORDER

          SCOTT L. PALK UNITED STATES DISTRICT JUDGE

         Petitioner, Adrian Adam Tarkington, appearing pro se, filed this action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. He challenges the constitutionality of his state court conviction and sentence in Case No. CF-2012-7249, District Court of Oklahoma County, State of Oklahoma.

         Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), this matter was referred for initial proceedings to United States Magistrate Judge Suzanne Mitchell, who issued a Report and Recommendation [Doc. No. 15] finding Respondent's motion to dismiss the Petition should be granted on grounds the Petition is untimely filed under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1)(A), and that Petitioner is not entitled to statutory or equitable tolling of the limitations period.

         Petitioner timely objected to the Report and Recommendation [Doc. No. 16]. Petitioner does not dispute that his conviction became final on February 15, 2016 and the one-year limitations period expired on February 16, 2017. See R&R at 3; Obj. at 2.

         Therefore, absent any tolling of the limitations period, his Petition [Doc. No. 1] filed on June 21, 2018 is untimely.[1]

         Petitioner claims he is entitled to “[s]tatutory and/or equitable tolling” for the time period November 22, 2016 through October 27, 2017. Obj. at 3.[2] He points to an application for post-conviction relief filed in his state-court action on November 10, 2016. Specifically, he argues that the State moved to strike his application on November 14, 2016 but the state district court did not rule on the State's motion until eleven months later on October 27, 2017. Id. Petitioner identifies the efforts he took to obtain a ruling from the state district court to include: a letter of inquiry dated June 7, 2017; a petition for a motion hearing dated July 19, 2017; and two petitions for writ of mandamus filed before the Oklahoma Court of Criminal Appeals (OCCA) dated September 12, 2017 and October 4, 2017. Id. He argues that not until the OCCA granted mandamus relief on October 25, 2017 was he able to obtain a ruling from the state district court on October 27, 2017. Id.

         Petitioner acknowledges, nonetheless, that the state district court granted the State's motion to strike his post-conviction application. Id. The record establishes the post- conviction application exceeded the page limitations established by the state court's local rules and Petitioner had not been granted prior permission to exceed the page limitation.[3]See Levering v. Dowling, 721 Fed.Appx. 783, 787 (10th Cir. 2018) (finding a post-conviction application filed in Oklahoma district court and stricken based on State's motion that application exceeded page limitations of Local Rule 37, was not a properly filed application and did not trigger statutory tolling). As Judge Mitchell found, Petitioner is not entitled to statutory tolling because his post-conviction application was not “properly filed.” See R&R at 4 (citing 28 U.S.C. § 2244(d)(2)); see also id. at 6. The Court concurs with Magistrate Judge Mitchell's finding that the state post-conviction application was not properly filed and, therefore, that statutory tolling is not available to Petitioner. See R&R at 4-6.

         In his Objection, Petitioner relies on a second post-conviction application filed November 6, 2017, as grounds for statutory tolling. See Obj. at 4. But the statute of limitations period had already expired by that time and, therefore, this second application could not toll the limitations period. 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.”).

         Petitioner appears to primarily rely upon equitable tolling as the basis for his objection to the Report and Recommendation. Pointing to the state district court's delay in ruling upon the State's motion to strike, Petitioner argues he “did not have the opportunity to correct any problems, issues or error pertaining to his November 10, 2016 filing of his application for post-conviction relief in a timely manner.” Obj. at 3. According to Petitioner, “[t]he District Court's delay in making and filing its ruling concerning the State's motion to strike did indeed prevent and/or prohibit the Petitioner from refiling a proper application for post-conviction relief in a timely manner.” Id.

         Magistrate Judge Mitchell addressed this argument in the Report and Recommendation but deemed the state court's delayed ruling did not constitute an “‘uncontrollable circumstance [that] prevent[ed Petitioner] from timely filing . . . .'” R&R at 8 (quoting Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)). As Magistrate Judge Mitchell found, “[t]he state district judge did nothing to prevent or prohibit Petitioner from properly filing an application for post-conviction relief” as “[i]t was always within Petitioner's control to file a post-conviction application that complied with the applicable state district court rule.” Id. at 8-9.

         The Court agrees. Additionally, the Court finds Petitioner did not act with requisite diligence before the state district court. Cf. Gibson, 232 F.3d at 808 (“Equitable tolling would be appropriate . . . when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.”). Petitioner offers no explanation as to why he waited seven months after the filing of his state post-conviction motion (and four months after the expiration of § 2244(d)(1)(A)'s one-year limitations period) to make any inquiry before the state court as to the status of his post-conviction proceedings.

         Although Petitioner thereafter undertook various efforts before the state courts to address the status of his state post-conviction proceedings, those efforts are insufficient to demonstrate both his diligence in pursuing state post-conviction relief and that extraordinary circumstances exist to support equitable tolling. As stated, the actions of the state district court did not prevent Plaintiff from filing a proper state-court application for post-conviction relief. Notably, Petitioner not only knew at the outset that his application exceeded the page limitation, he also knew that just four days after he filed his application, the State moved to strike it.[4]

         Moreover, Petitioner could have filed a protective petition for federal habeas relief in this Court during the pendency of his state post-conviction proceedings if he were concerned his state court application might not toll the one-year limitations period. See Pace v. DeGuglielmo, 544 U.S. 408, 416 (2005); Jones, 762 F.3d at 1181. Petitioner did not, however, choose this course of action. Under these circumstances, the Court, concludes that equitable tolling of the limitations period is not warranted and the Petition is untimely filed under 28 U.S.C. § 2244(d)(1)(A).[5]

         As a final matter, the Court addresses Plaintiff's Motion for Appointment of Counsel [Doc. No. 7]. Where, as here, no evidentiary hearing is required, there is no right to the appointment of counsel in a § 2254 proceeding and whether to appoint counsel is left to the Court's discretion. See Swazo v. Wyoming Dep't of Corrs. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994); 28 U.S.C. ยง 2254(e)(2). Petitioner claims he is financially unable to afford counsel, the issues raised in the case are complex, he has limited knowledge of the law and his access to legal materials is limited. Petitioner has failed to demonstrate appointment of counsel ...


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