United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE.
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.
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.
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.
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).
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
Id. at 16.
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.
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. §
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.