United States District Court, N.D. Oklahoma
BRYON K. CREECH, Petitioner,
JIMMY MARTIN, Respondent.
OPINION AND ORDER
E. Dowdell, Chief Judge United States District Court
Bryon K. Creech, a state inmate appearing pro se,
commenced this action on February 25, 2019, by filing a 28
U.S.C. § 2254 petition for writ of habeas corpus (Doc.
1) and a motion to proceed in forma pauperis (Doc.
2) in the United States District Court for the Western
District of Oklahoma. Because Petitioner seeks habeas relief
from the judgment and sentence entered against him in the
District Court of Tulsa County, No. CF-2015-1592, the case
was transferred to this Court on March 25, 2019. See
Docs. 6, 7.
Motion to proceed in forma pauperis shall be
preliminary review, the Court finds that the motion to
proceed in forma pauperis does not provide the
information necessary for this Court to determine whether
Petitioner may be authorized to proceed without prepayment.
Specifically, Petitioner submitted a blank “statement
of institutional accounts.” Doc. 2, at 3-4. As a
result, the Court denies the motion.
30 days of the entry of this order, Petitioner shall either
pay the $5 filing fee, see 28 U.S.C. § 1914(a),
or submit an amended motion to proceed in forma
pauperis, see Id. § 1915(a)(1). Should
Petitioner file a motion to proceed in forma
pauperis, that motion shall be on the court-approved
form and supported by a statement of institutional accounts,
executed by an appropriate prison official, reflecting the
current balance in Petitioner's inmate account(s).
See LCvR 3.5.
Petitioner shall show cause why the habeas petition should
not be dismissed.
addition, Petitioner shall show cause in writing why the
petition should not be dismissed on procedural grounds.
District courts must “promptly examine” a habeas
petition and dismiss the petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court.” Rule 4, Rules Governing Section 2254 Cases
in the United States District Courts (Habeas Rule 4).
However, before summarily dismissing a habeas petition on its
own initiative, the district court must give the petitioner
“fair notice and an opportunity to present [his]
position.” Day v. McDonough, 547 U.S. 198,
210 (2006); see also Allen v. Zavaras, 568 F.3d
1197, 1203 (10th Cir. 2009) (noting district court correctly
applied Day by providing petitioner an opportunity
to respond before sua sponte dismissing habeas
petition on exhaustion grounds).
Petitioner's claims and allegations
habeas petition is not a model of clarity. Petitioner alleges
he was convicted in October 2016, after pleading guilty to
six offenses in the District Court of Tulsa County, No.
CF-2015-1592. Doc. 1, at 1. Liberally construing the
petition, it appears that Petitioner seeks federal habeas
relief on three grounds: (1) he was denied effective
assistance of counsel, (2) he was denied his right to be
present at court hearings, and (3) his pleas were not
“knowing” because he was on “psychotropic
meds.” Id. at 5-8.
alleges he filed an “appeal” in “Tulsa
County” and that appeal was denied on January 22, 2019.
Id. at 2. Petitioner alleges he did not file any
other petitions, applications or motions in any state court
to challenge his convictions or sentences. Id. at 3.
However, Petitioner also alleges that he exhausted his habeas
claims either (1) on direct appeal or (2) through an
“out-of-time” postconviction motion that was
filed in Tulsa County District Court and denied on either
January 11, 2019, or January 22, 2019. Id. at 5-9.
Petitioner did not respond to the question on the form
requesting an explanation as to the timeliness of the
petition, if the petition was filed over one year after the
challenged judgment became final. Id. at 13.
obtain a better understanding of the relevant state court
proceedings, the Court took judicial notice of the public
docket sheet in Tulsa County District Court No. CF-2015-1592,
available online through the Oklahoma State Courts Network
(OSCN). See United States v. Ahidley, 486 F.3d 1184,
1192 n.5 (10th Cir. 2007) (noting courts may take judicial
notice of publicly-filed court records). Consistent with
Petitioner's allegations, the state court's docket
reflects that Petitioner was convicted and sentenced,
pursuant to guilty pleas, on October 28, 2016. State v.
Creech, No. CF-2015-1592, Docket Sheet, available at
http://www.oscn.net, last visited March 28, 2019. Also,
seemingly consistent with Petitioner's allegations, the
state court's docket reflects that Petitioner filed an
application for postconviction relief, seeking an out of time
appeal, on December 19, 2018, and that the state district
court denied that application on January 22, 2019.
The petition appears to be time-barred.
claims, all of which allege constitutional defects in the
plea proceedings, appear to be time-barred. The Antiterrorism
and Effective Death Penalty Act (AEDPA), imposes a one-year
limitation period for a state prisoner seeking federal habeas
relief. 28 U.S.C. § 2244(d)(1). Generally, that
limitation period commences on “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.”
Id. § 2244(d)(1)(A). Regardless of when the
one-year limitation period commences, that period may be
statutorily tolled for “[t]he 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.” Id. § 2244(d)(2).
Petitioner was convicted and sentenced on October 28, 2016.
Under Oklahoma law, Petitioner was required to move to
withdraw his pleas within 10 days of sentencing if he
intended to challenge his convictions by filing a certiorari
appeal with the Oklahoma Court of Criminal Appeals. Rule
4.2(A), Rules of the Oklahoma Court ofCriminal
Appeals, Title 22, Ch. 18, App. (2019). Because he did
not move to withdraw his pleas or file a certiorari appeal,