United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN, UNITED STATES DISTRICT JUDGE
a habeas corpus action. In an Opinion and Order filed
February 12, 2019 (Dkt. # 5), the Court found that the habeas
petition is subject to being dismissed as time-barred under
28 U.S.C. § 2244(d)(1)'s one-year statute of
limitations and, alternatively, because Petitioner
procedurally defaulted his habeas claims. The Court provided
Petitioner 30 days to file a written response demonstrating
why the petition should not be dismissed. Dkt. # 5, at 11-12.
Petitioner filed a timely response (Dkt. # 8) on March 11,
2019. For the reasons stated in this Court's prior
Opinion and Order, and for the reasons that follow, the Court
finds the habeas petition shall be dismissed.
brings this action to challenge the revocation of the
suspended sentence he received in 2004 following his
conviction in the District Court of Nowata County, No.
CF-2003-116, for first degree rape. Dkt. # 1 at 1-2; Dkt. #
2, at 5. In 2014, the State charged Petitioner in the
District Court of Washington County, No. CF-2014-478, with
felony failure to register as a sex offender. Dkt. # 2, at 5.
Following a hearing on August 19, 2015, the Nowata County
District Court found, based on the new felony charge in the
Washington County case, that Petitioner violated the terms of
his suspended sentence in the Nowata County case.
Id. The court thus revoked his suspended sentence
and ordered him to serve the remaining 13 years and 174 days
of his original sentence in prison. Id. Petitioner
did not file a direct appeal to challenge the order revoking
his suspended sentence.
March 2016, the State filed a motion in Washington County
District Court seeking dismissal of the charge in No.
CF-2014-478, and the state district court granted the motion.
Dkt. # 2, at 5, 18. Thereafter, Petitioner “made
various attempts to appeal the revocation to Nowata County
District Court, with no success as none of Petitioner's
filing were ever responded to.” Dkt. # 2, at 6. The
record reflects that Petitioner filed the following pro se
post-revocation motions in Nowata County District Court: (1)
a motion for suspended sentence, filed June 16, 2016,
id. at 22; (2) a second motion for sentence
modification, filed August 4, 2016, id. at 21; (3) a
motion for appeal out of time, filed June 12, 2017,
id. at 20; (4) a petition for writ of habeas corpus,
filed December 18, 2017, id. at 19; (5) an
application for waiver of costs and fines, filed January 4,
2018, id. at 24; and (6) a petition for writ of
mandamus, filed February 12, 2018, id. at 6, 23. In
the petition for writ of mandamus, Petitioner requested a
“response to all previous and current filings submitted
by Petitioner starting from June 16, 2016 to present.”
Dkt. # 2, at 6. The state district court issued six written
orders on April 27, 2018, denying Petitioner's motions.
Id. at 19-24.
timely filed a notice of intent to appeal from the state
district court's orders denying his various motions and
applications. Dkt. # 2, at 6, 25. By order filed November 7,
2018, the OCCA dismissed Petitioner's appeal for
“fail[ing] to ensure a proper record has been
filed” in accordance with state procedural rules. Dkt.
# 1, at 3-4; Dkt. # 2, at 6, 25-26 (copy of OCCA's
filed the instant federal habeas petition on January 19,
2019. Dkt. # 2, at 27; see Dkt. # 5, at 1 n.1
(applying prison mailbox rule to deem petition filed January
19, 2019). He claims he is entitled to federal habeas relief
because (1) he received ineffective assistance of counsel
during his 2015 revocation hearing, in violation of the Sixth
Amendment, and (2) he was denied his constitutional right to
procedural due process during the 2015 revocation hearing.
Dkt. # 1, at 6-8.Petitioner alleges that he presented both
of these claims to the OCCA in No. PC-2018-538. Id.
prior Opinion and Order, the Court found (1) that
Petitioner's habeas claims were subject to being
dismissed under the doctrine of anticipatory procedural bar
because Petitioner failed to properly exhaust available state
remedies as to either claim, see Dkt. # 5, at 5-7,
(2) that, to the extent Petitioner attempted to exhaust his
claims by presenting them to the OCCA in No. PC-2018-538,
both claims were subject to being dismissed as procedurally
defaulted because the OCCA dismissed his appeal on
independent and adequate state procedural grounds, see
Id. at 7-8, and (3) that the petition was subject to
being dismissed as time-barred because Petitioner failed to
comply with the AEDPA's one-year statute of limitations,
see Id. at 8-9.
Court provided Petitioner an opportunity to demonstrate
whether he could make the showings necessary to overcome the
untimeliness of the petition and the procedural default of
his claims. As stated in the prior Opinion and Order, the
untimeliness of a habeas petition may be excused for
equitable reasons, Holland v. Florida, 560 U.S. 631,
645 (2010), or upon “a credible showing of actual
innocence, ” McQuiggin v. Perkins, 569 U.S.
383, 392 (2013). To obtain equitable tolling, a petitioner
must show “‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely
filing” of his federal habeas petition.
Holland, 560 U.S. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). This is a
“strong burden” that requires the petitioner
“to show specific facts to support his claim of
extraordinary circumstances and due diligence.”
Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.
2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307
(11th Cir. 2008)).
overcome a procedural default, a petitioner must
“demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Grant v.
Royal, 886 F.3d 874, 892 (10th Cir. 2018) (quoting
Coleman v. Thompson, 501 U.S. 722, 750 (1991)),
cert. denied sub nom. Grant v. Carpenter, 139 S.Ct.
925 (2019). The “cause and prejudice” standard
“requir[es] proof of both cause and
prejudice.” Klein v. Neal, 45 F.3d 1395, 1400
(10th Cir. 1995) (emphasis in original). To satisfy the cause
component, a petitioner must “show that some objective
factor external to the defense impeded . . . efforts to
comply with the State's procedural rules.”
Murray v. Carrier, 477 U.S. 478, 488 (1986).
Examples of external factors may include the discovery of new
evidence, a change in the law, and interference by state
officials. Id. However, a petitioner generally
cannot rely on his status as a pro se litigant, his ignorance
of the law, or his lack of formal legal training to establish
cause. Klein, 45 F.3d at 1400. To satisfy the
prejudice component, a petitioner must show
“‘actual prejudice' resulting from the errors
of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982). For a petitioner who
cannot show both “cause and prejudice, ” the only
alternative is to prove that a “fundamental miscarriage
of justice, ” will occur absent federal court review of
the petitioner's habeas claims. Coleman, 501
U.S. at 750.
urges this Court not to dismiss his petition for three
reasons. However, for the reasons that follow, the Court
finds Petitioner cannot make the requisite showings to avoid
State district ...