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Hunt v. Dowling

United States District Court, N.D. Oklahoma

May 17, 2019

TERRY LEE HUNT, Petitioner,
v.
JANET DOWLING, Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, CHIEF JUDGE.

         Petitioner Terry Lee Hunt, a state inmate appearing through counsel, 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-1996-5169. 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 (Doc. 6). Respondent filed a brief in support of her motion (Doc. 7). Petitioner did not file a response. For the reasons that follow, the Court grants Respondent's motion and dismisses the petition, with prejudice, as time-barred.

         I.

         In 1996, when Petitioner was 16 years old, he agreed to help Timothy Stemple kill Stemple's wife, Trisha, in exchange for a portion of Trisha's life insurance proceeds. Doc. 3, Petition, at 6; see Stemple v. State, 994 P.2d 61, 65 (Okla. Crim. App. 2000) (affirming judgment and sentence of Petitioner's co-defendant, Stemple, as to convictions of first-degree malice murder and conspiracy to commit murder). At the time, Stemple was having an affair with Petitioner's cousin. Stemple, 994 P.2d at 65. In October 1996, the two men killed Trisha by beating her with a baseball bat and running over her with Stemple's truck. Id. at 65-66.

         In December 1997, Petitioner pleaded guilty to one count of first-degree murder, and the trial court imposed a sentence of life with the possibility of parole. Doc. 3, Petition, at 9; Doc. 7, Brief in Support of Motion to Dismiss, at 1. Petitioner did not move to withdraw his plea or otherwise appeal his conviction and sentence. Doc. 7, at 1.

         Petitioner filed an application for post-conviction relief in state district court on October 27, 2017, claiming his life sentence, imposed for a homicide he committed as a juvenile, violates the Eighth Amendment. Doc. 3, Petition, at 10. The district court denied the application on May 1, 2018, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial of post-conviction relief on July 10, 2018. Id.; see also Doc. 3-1 (state district court order); Doc. 3-2 (appellate court order).

         Petitioner filed the instant federal habeas petition on August 24, 2018. Doc. 3, Petition, at 1. Petitioner alleges he is entitled to habeas relief on one ground:

The Oklahoma Court of Criminal Appeals made an unreasonable determination that Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, [136 S.Ct. 718] (2016), are not applicable to his de facto life without parole sentence, but the sentence is in violation of the Eighth Amendment.

Id. at 16.

         Respondent urges this Court to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations. Doc. 6, Motion to Dismiss, at 1; Doc. 7, Brief in Support of Motion to Dismiss, at 1-6. Petitioner does not contest that the petition is untimely. Doc. 3, Petition, at 11-12. Instead, he asserts the petition “should be construed as timely and be entitled to equitable tolling.” Id. at 11.

         II.

         State prisoners have only one year from the latest of four possible dates to file a timely federal habeas petition: (1) the date on which the prisoner's state-court judgment “became final by the conclusion of direct review or the expiration of the time for seeking such review, ” (2) the date on which a state-created impediment to filing a federal habeas petition was removed, (3) “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, ” or (4) the date on which the prisoner, with “due diligence” could have discovered “the factual predicate of the claim or claims presented.” 28 U.S.C. § 2244(d)(1)(A)-(D).

         Regardless of when the one-year limitation period commences, the period is 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). But statutory tolling is available only if the prisoner files an application for post-conviction relief or other collateral review before the one-year limitation period expires. Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). In appropriate circumstances, the untimeliness of a federal habeas petition may be excused for equitable reasons. Holland v. Florida, 560 U.S. 631, 649-50 (2010); Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). To obtain equitable tolling, the habeas petitioner bears the burden to demonstrate both (1) that he diligently pursued his federal claim and (2) that extraordinary circumstances prevented him from filing a timely federal habeas petition. Yang, 525 F.3d at 928.

         A. The ...


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