United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. WHITE UNITED STATES DISTRICT JUDGE.
action is before the Court on Respondent's motion to
dismiss Petitioner's petition for a writ of habeas corpus
as barred by the statute of limitations. Petitioner, an
inmate in the custody of the Oklahoma Department of
Corrections who is incarcerated at Lawton Correctional
Facility in Lawton, Oklahoma, attacks his conviction and
sentence in Carter County District Court No. CF-2012-25 for
First Degree Rape.
alleges the petition was filed beyond the one-year statute of
limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996, codified at 28 U.S.C. § 2244(d)
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
(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 under this
28 U.S.C. § 2244(d).
record shows that on April 3, 2014, Petitioner's judgment
and sentence was affirmed by the Oklahoma Court of Criminal
Appeals (OCCA) on direct appeal in Reisman v. State,
No. F-2013-243 (Okla. Crim. App. Apr. 3, 2014) (Dkt. 9-5).
His conviction became final 90 days later on July 2, 2014.
See Fleming v. Evans, 481 F.3d 1249, 1257-58 (10th
Cir. 2007); Locke v. Saffle, 237 F.3d 1269, 1273
(10th Cir. Jan. 31, 2001) (holding that a conviction becomes
final for habeas purposes when the 90-day period for filing a
petition for a writ of certiorari to the United States
Supreme Court has passed). The statutory year for filing a
habeas petition began the next day on July 3, 2014. Without
the benefit of statutory tolling, the one-year limitation
period would have expired on July 3, 2015. See 28
U.S.C. § 2244(d)(1)(A).
to 28 U.S.C. § 2244(d)(2), the statute of limitations is
tolled while a properly-filed application for post-conviction
relief or other collateral review of the judgment at issue is
pending. On May 15, 2015, with 49 days left in the one-year
limitation period, Petitioner filed a post-conviction
application in the trial court, challenging his conviction
(Dkt. 9-6). The application was denied on January 22, 2016
February 2, 2016, Petitioner attempted to appeal the denial
of post-conviction relief to the OCCA, but his notice of
intent to appeal was filed in the trial court one day too
late (Dkt. 9-8). On February 22, 2016, he sought permission
from the trial court to initiate an appeal out of time (Dkt.
9-9). On October 18, 2016, the trial court found
Petitioner's filing was untimely through no fault of his
own and recommended to the OCCA that Petitioner be granted an
appeal out of time of the denial of post-conviction relief
November 4, 2016, Petitioner filed in the OCCA a
“Petition for Appeal Out of Time" in No.
PC-2016-1012 (Dkt. 9-15), and on December 14, 2016, the OCCA
granted Petitioner the opportunity to file an appeal out of
time (Dkt. 16 at 2). The OCCA instructed Petitioner to Alodge
the appeal" of the trial court's order denying him
postconviction relief in accordance with the applicable OCCA
rules within thirty (30) days of December 14, 2016--or no
later than January 13, 2017. Id. Petitioner was
expressly advised that he was required to include a certified
copy of the district ...