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Murrell v. Allbaugh

United States District Court, N.D. Oklahoma

May 15, 2019

SHAWN MURRELL, Petitioner,
v.
JOE ALLBAUGH, Respondent.

          OPINION AND ORDER

          JAMES H. PAYNE JUDGE

         Petitioner Shawn Murrell, a state inmate appearing pro se, brings this 28 U.S.C. § 2254 habeas corpus action to challenge the judgment and sentence entered against him in the District Court of Tulsa County, No. CF-2013-370. In that case, Petitioner is serving two concurrent 20-year prison terms following his convictions for use of a vehicle to discharge a firearm and assault and battery with a dangerous weapon, both after former conviction of a felony. Petitioner claims he is entitled to federal habeas relief because (1) he was deprived of a timely direct appeal, through no fault of his own, (2) he was deprived of his right to the effective assistance of trial counsel, and (3) the trial court lacked subject-matter jurisdiction over his criminal prosecution. Before the Court is Respondent's motion to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations (Dkt. 8). Respondent filed a brief in support of his motion (Dkt. 9), and Petitioner filed a response (Dkt. 10). For the reasons discussed below, the Court grants Respondent's motion and dismisses the habeas petition.

         BACKGROUND

         In August 2014, Petitioner entered a blind guilty plea, in the District Court of Tulsa County, No. CF-2013-370, on two charges: use of a vehicle to discharge a firearm, after former conviction of a felony, in violation of Okla. Stat. tit. 21, § 652 (count 1); and assault and battery with a dangerous weapon, after former conviction of a felony, in violation of Okla. Stat. tit. 21, § 645 (Count 2). Dkt. 9-1, Plea of Guilty/Summary of Facts, ¶ 2-5. On October 13, 2014, the state district court sentenced Petitioner to serve a 20-year prison term for each conviction and ordered the sentences to be served concurrently, with no credit for time served. Id. at 6; see also Dkts. 9-2 & 9-3 (judgments and sentences). Petitioner did not move to withdraw his guilty plea or seek direct review by filing a certiorari appeal with the Oklahoma Court of Criminal Appeals (OCCA).

         Petitioner filed an application for post-conviction relief in state district court on May 21, 2015. Dkt. 1, Petition, at 3; Dkt. 9-4, First PCR Application, at 1. In that application, Petitioner claimed he was deprived of a timely appeal following his guilty plea, through no fault of his own, and sought leave to file an out-of-time certiorari appeal. Dkt. 9-4, at 2. He further alleged he had been deprived of his Sixth Amendment right to the effective assistance of counsel during his plea proceedings and he had been deprived of his Fourteenth Amendment right to due process because the trial court lacked subject-matter jurisdiction. Id. at 4-8. The state district court issued an order on September 28, 2016, recommending denial of Petitioner's request for leave to file an out-of-time certiorari appeal and denying Petitioner's application for post-conviction relief. Dkt. 9-5, Order Denying First PCR Application, at 1. Petitioner did not timely appeal the state district court's decision.

         On October 5, 2016, Petitioner filed a motion, under Okla. Stat. tit. 22, § 982a, requesting review or modification of his sentence. Dkt. 9-9, Motion for 24-Month Judicial Review, at 1. The state district court denied the motion on November 2, 2016. Dkt. 9-10, Order Denying Motion for 24-Month Judicial Review, at 1.

         Petitioner filed a second application for post-conviction relief on May 4, 2017. Dkt. 9-6, Second PCR Application, at 1. In his application, Petitioner sought leave to file an out-of-time post-conviction appeal challenging the state district court's denial of his first application for post-conviction relief. Id. at 2-4. On June 28, 2017, the state district court issued an order recommending Petitioner be allowed to file an out-of-time post-conviction appeal. Dkt. 1, Petition, at 4-5. By order filed July 28, 2017, in No. PC-2017-734, the OCCA granted Petitioner's request for leave to file an out-of-time post-conviction appeal. Dkt. 9-7, Order Granting Post-Conviction Appeal Out of Time, at 1-2. On November 21, 2017, in No. PC-2017-0841, the OCCA affirmed the state district court's order denying Petitioner's first application for post-conviction relief. Dkt. 9-8, Order Affirming Denial of First PCR Application, at 1-3.

         Petitioner filed the instant federal habeas petition on June 28, 2018. Dkt. 1, Petition, at 1, 15-16.[1] He claims (1) he was deprived of a timely direct appeal, through no fault of his own, (2) he was deprived of his Sixth Amendment right to the effective assistance of trial counsel, and (3) he was deprived of his Fourteenth Amendment right to due process because the trial court lacked subject-matter jurisdiction over his criminal prosecution. Id. at 5, 7-8. Respondent moves to dismiss the habeas petition as time-barred under 28 U.S.C. § 2244(d)(1). Dkt. 8, Motion to Dismiss, at 1; Dkt. 9, Brief in Support of Motion to Dismiss, at 1.

         ANALYSIS

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), state prisoners have one year from the latest of four triggering events in which to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The limitation 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.” Id. § 2244(d)(1)(A).

         The one-year limitation period is 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). However, “[o]nly state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.” Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). In other words, if a state prisoner files an application for post-conviction relief in state court after his one-year AEDPA deadline expires, the application has no tolling effect under § 2244(d)(2). Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001).

         In addition, applications or motions seeking collateral review in state court must be “properly filed” to toll the one-year limitation period. 28 U.S.C. § 2244(d)(2). This means the application or motion seeking collateral review must be filed in accordance with state-law filing requirements. See Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.”).

         Because the AEDPA's one-year limitation period is not jurisdictional, a district court may toll the limitation period for equitable reasons. Holland v. Florida, 560 U.S. 631, 645 (2010). To obtain equitable tolling, a state prisoner 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. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). This is a “strong burden” requiring the prisoner “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)).

         A. The petition is untimely under 28 U.S.C. ...


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