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Creech v. Martin

United States District Court, N.D. Oklahoma

April 8, 2019

BRYON K. CREECH, Petitioner,
v.
JIMMY MARTIN,[1] Respondent.

          OPINION AND ORDER

          John E. Dowdell, Chief Judge United States District Court

         Petitioner 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.

         A. Motion to proceed in forma pauperis shall be denied.

         On 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.

         Within 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.

         B. Petitioner shall show cause why the habeas petition should not be dismissed.

         In 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).

         1. Petitioner's claims and allegations

         The 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.

         Petitioner 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.

         To 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. Id.

         2. The petition appears to be time-barred.

         Petitioner's 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).[2] 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).

         Here, 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, his ...


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