Reisman v. Allbaugh

          OPINION AND ORDER

          RONALD A. WHITE UNITED STATES DISTRICT JUDGE.

         This 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.

         Respondent 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) (AEDPA):

(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 subsection.

28 U.S.C. § 2244(d).

         The 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).

         Pursuant 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 (Dkt. 9-7).

         On 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 (Dkt. 9-10).^[1]

         On 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 ...