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Hobson v. Whitten

United States District Court, N.D. Oklahoma

April 17, 2019

RICK WHITTEN, Respondent.



         This is 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.


         Petitioner 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.

         In 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.

         Petitioner 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 dismissal order).

         Petitioner 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.[1]Petitioner alleges that he presented both of these claims to the OCCA in No. PC-2018-538. Id. at 7-10.


         In its 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.

         The 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)).

         To 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.


         Petitioner 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 dismissal.

         A. State district ...

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