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Colbert v. Allbaugh

United States District Court, N.D. Oklahoma

April 11, 2019

JAMES DARREN COLBERT, Petitioner,
v.
JOE ALLBAUGH,[1] Respondent.

          OPINION AND ORDER

          CLAIRE V. BAGAN UNITED STATES DISTRICT JUDGE.

         Petitioner James Darren Colbert, a state inmate appearing pro se, commenced this action on February 28, 2019, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1). He paid the requisite $5 filing fee on March 7, 2019. Dkt. # 3. On preliminary review, the Court finds that the habeas petition is subject to being dismissed as time-barred. Within thirty (30) days of the entry of this order, petitioner shall show cause in writing why his petition should not be dismissed as time-barred.

         BACKGROUND

         Petitioner challenges the constitutional validity of the judgment and sentence entered against him in the District Court of Osage County, No. CF-2012-291. Dkt. # 1, at 1. In that case, a jury convicted petitioner of four felony offenses: (1) trafficking in illegal drugs, (2) possessing a firearm during the commission of a felony, (3) possessing a firearm after former conviction of a felony, and (4) unlawfully using a police radio, all after former conviction of two or more felonies; and two misdemeanor offenses: (1) possessing marijuana, and (2) possessing drug paraphernalia. Id. at 1, 26. The trial court imposed a 50-year prison term for the drug trafficking conviction, imposed shorter prison terms for each remaining conviction, and ordered all terms to be served concurrently. Id. at 26. Petitioner filed a timely direct appeal. Id. at 2, 27. In an unpublished opinion filed February 4, 2015, in No. F-2013-1106, the Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions and sentences. Id. at 27. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Id. at 3.

         On February 23, 2016, petitioner filed an application for post-conviction relief in state district court. Dkt. # 1, at 3. The state district court denied that application on March 21, 2016. Id. Petitioner did not appeal. Id. at 27.

         Petitioner filed a second application for post-conviction relief in state district court on May 9, 2016. Id. at 4. In the second application, petitioner sought leave to file an out of time post-conviction appeal challenging the denial of his first application for post-conviction relief. Id. The state district court denied petitioner's second application on July 12, 2016. Id. at 4, 27. Petitioner did not appeal. Id. at 27.

         On December 16, 2016, petitioner filed a third application for post-conviction relief in state district court. Dkt. # 1, at 4. The state district court denied petitioner's application on February 2, 2018. Id. at 5, 26. Petitioner timely appealed, and the OCCA affirmed the denial of petitioner's third application for post-conviction relief on April 10, 2018. Id. at 26-28.

         Petitioner filed the instant federal habeas petition on February 28, 2019. Dkt. # 1, at 1. He raises four claims: (1) appellate counsel was ineffective, (2) the trial court lacked subject-matter and personal jurisdiction, (3) the search warrant was not supported by probable cause, and (4) the State did not file an amended information. Id. at 5-10, 20-25.

         ANALYSIS

         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. However, before summarily dismissing a habeas petition on its own initiative, the district court must afford 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).

         A. The petition is time-barred.

         In this case, it is plainly apparent that the habeas petition is time-barred. State prisoners have one year from the latest of four specified dates to file a timely federal habeas petition. 28 U.S.C. § 2244(d)(1)(A)-(D). The one-year period is tolled for 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” in state court. Id. § 2244(d)(2). However, to obtain the benefit of statutory tolling, the application for post-conviction or other collateral review must be filed within the applicable one-year limitation period. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

         1.The petition is time-barred under § 2244(d)(1)(A).

         For most state prisoners, the one-year limitation period commences when the prisoner's state-court judgment becomes “final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The OCCA affirmed petitioner's judgment on February 4, 2015, and he did not file a petition for writ of certiorari in the United States Supreme Court. Petitioner's state-court judgment thus became final on May 4, 2015, when the 90-day period for seeking a writ of certiorari from the Supreme Court expired. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Petitioner's one-year ...


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