United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE
a state prisoner appearing pro se, has filed this
action seeking relief under 28 U.S.C. § 2254. Petitioner
is challenging his convictions on drug related charges
entered in the District Court of Garvin County, No.
CF-2013-347. The matter has been referred to the undersigned
Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B), and the undersigned has
undertaken a preliminary review of the sufficiency of the
Petition pursuant to Rule 4, Rules Governing Section 2254
Cases in the United States District Courts. For the following
reasons, it is recommended the action be dismissed.
September 15, 2015, Petitioner was found guilty, following a
jury trial, of conspiracy to distribute methamphetamine and
possession of a controlled dangerous substance with intent to
distribute (methamphetamine). Doc. No. 1
(“Petition”) at 1; see also Oklahoma
State Courts Network, District Court of Garvin County, No.
CF-2013-347. Petitioner was sentenced on November 9,
2015. Id. Petitioner appealed his convictions and
sentences to the Oklahoma Court of Criminal Appeals
(“OCCA”) on November 25, 2015. See
Oklahoma State Courts Network, OCCA, No.
F-2015-1042. The OCCA affirmed Petitioner's
conviction and sentence on December 16, 2016. Id.
December 14, 2017, Petitioner filed an Application for
Post-Conviction Relief with the state district court.
See Oklahoma State Courts Network, District Court of
Garvin County, No. CF-2013-347. The state district court denied
the same on January 9, 2018. Id. Petitioner appealed
the denial of his post-conviction relief to the OCCA and the
OCCA affirmed the denial on March 9, 2018. See
Oklahoma State Courts Network, OCCA, No.
PC-2018-86. Petitioner filed the instant action on
January 29, 2019. See generally Petition.
Statute of Limitations
Applicable Limitations Period
28 U.S.C. § 2244(d)(1)(A), the one-year limitations
period generally begins to run from “the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.”
The OCCA affirmed Petitioner's convictions in No.
CF-2013-374 on December 16, 2016. These convictions therefore
became “final” under 28 U.S.C. §
2244(d)(1)(A) on March 16, 2017, when the time for Petitioner
to seek certiorari review, which he did not do, with the
United States Supreme Court expired. Locke v. Saffle,
237 F.3d 1269, 1272 (10th Cir. 2001) (“Under the
statute, a petitioner's conviction is not final and the
one-year limitation period for filing a federal habeas
petition does not begin to run until . . . ‘after the
United States Supreme Court has denied review, or, if no
petition for certiorari is filed, after the time for filing a
petition for certiorari with the Supreme Court has
passed.'”) (quoting Rhine v. Boone, 182
F.3d 1153, 1155 (10th Cir. 1999)).
had one year beginning March 17, 2017, to file his federal
habeas petition commensurate with 28 U.S.C. §
2244(d)(1)(A). Absent statutory or equitable tolling, his
one-year filing period expired on March 19,
previously established, Petitioner filed a request for
post-conviction relief on December 14, 2017. At that time,
272 days of the limitations period had elapsed, and
Petitioner had 93 days remaining in his one year limitations
period. The one year limitations period was statutorily
tolled under 28 U.S.C. § 2244(d)(2) while the motion was
pending before the state district court. Additionally, the
statutory limitations period was further tolled for the
30-day period during which Petitioner could timely appeal the
district court's decision to the OCCA. Gibson v.
Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding
limitations period is tolled during period in which
petitioner could have sought an appeal under state law). On
January 26, 2018, Petitioner timely filed his appeal of the
state district court's ruling and the OCCA affirmed the
lower court's decision on March 9, 2018. Thus, the
limitations period resumed running on March 10, 2018, and
expired on June 11, 2018. Petitioner did not file the instant
action until January 29, 2019. Consequently, the Petition is
not timely filed unless the limitations period is extended
due to equitable tolling principles.
limitations period may be equitably tolled in extraordinary
circumstances so long as the petitioner has diligently
pursued his federal claims. Holland v. Florida, 560
U.S. 631, 645 (2010). See Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005) (“Generally, a litigant seeking
equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way.”). Actual innocence or incompetence
may constitute extraordinary circumstances that warrant
equitable tolling of the limitations period. See
Gibson, 232 F.3d at 808 (recognizing equitable tolling
might be appropriate where prisoner is actually innocent). On
the other hand, a claim of legal, not factual, innocence does
not provide a basis for equitable tolling. See Laurson v.
Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (noting that
actual innocence means factual innocence and that
petitioner's claim his guilty plea was involuntary did
not assert actual innocence of the crime to which he pled
guilty); Beavers v. Saffle, 216 F.3d 918, 923 (10th
Cir. 2000) (noting legal defenses to criminal charge do not
show factual innocence). See also Craft v. Jones,
435 Fed.Appx. 789, 792 (10th Cir. 2011) (habeas
petitioner's self-defense argument implicated legal, not
factual, innocence and did not warrant equitable tolling).
to warrant equitable tolling of the limitations period,
Petitioner must show that his convictions “[have]
probably resulted in the conviction of one who is actually
innocent.” Bouslev v. United States. 523 U.S.
614, 623-24 (1998) (quotations omitted). Petitioner's
grounds for relief in his Petition for Writ of Habeas Corpus
do not rely on claims of actual innocence. Instead,
Petitioner asserts arguments pertaining to the alleged
incompetency and shortcomings of his trial and appellate
counsels, prosecutorial misconduct, and a lack of due