United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, UNITED STATES DISTRICT JUDGE.
Ray Washington, appearing pro se,  filed this
Petition for Writ of Habeas Corpus [Doc. No. 5] pursuant to
28 U.S.C. § 2254, challenging several state court
convictions. See Oklahoma Supreme Court Network,
Nos. CF-2015-297 and CF-2015-492. The matter was referred to
United States Magistrate Judge Gary M. Purcell for
proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and
(C). Respondent moved for dismissal of the action. On March
25, 2019, Judge Purcell issued a Report and Recommendation
(“R&R” or “Report”) [Doc. No. 19]
in which he recommended that the Court grant Respondent's
motion and the Petition for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 [Doc. No. 1] be dismissed with
prejudice as untimely because the statute of limitations
period prescribed by 28 U.S.C. § 2244(d) expired prior
to its filing.
has filed a timely written objection [Doc. No. 20]. The Court
must make a de novo determination of any part of the
Report to which a specific objection is made, and may accept,
reject, or modify the recommended decision, in whole or in
part. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3). Petitioner objects to the Report on the following
grounds: (1) the statute of limitations was tolled until the
expiration of the period with in which he could file a writ
of certiorari to the Supreme Court for review of the Oklahoma
Court of Criminal Appeals' (“OCCA”) denial of
his application to file appeal out of time; and, (2)
ineffective assistance of counsel denied him the appellate
stated more fully below, the Court, upon de novo
review, overrules Petitioner's Objection and adopts the
Report and Recommendation in its entirety.
to Rule 4 of the Rules Governing Section 2254 Cases, Judge
Purcell was required to review the Petition upon filing and
to recommend dismissal if it appeared from the face of the
Petition that Petitioner was not entitled to relief. See
Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999).
The expiration of the statute of limitations is properly
considered upon such review. Id.
amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2244 provides
a statute of limitations for the filing of a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court of one year. The statute of limitations begins to
run on whichever is later-"the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1)(A). Where Petitioner has timely
filed a proper request for post-conviction relief, the
statute of limitations is tolled during the time in which
that request is pending in the state courts. See 28
U.S.C. § 2244(d)(2); see also Hoggro v. Boone,
150 F.3d 1223, 1226 (10th Cir. 1998). In his objection,
Petitioner does not dispute Judge Purcell's historical
account of the state court proceedings; thus, the Court
accepts this portion of the Report.
objects to the manner in which Judge Purcell applied
statutory tolling to the statute of limitations. Petitioner
asserts that the statute of limitations was tolled until
“the time for filing a certiorari petition” to
the United States Supreme Court expired. Objection at 5.
Based on this assertion, Petitioner contends his Petition was
timely filed by twenty-four (24) days. Id. However,
the Court concurs with Judge Purcell's interpretation of
allowable tolling of the statute of limitation with respect
to the facts of this case.
support of his position, Petitioner relies on Clay v.
United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076,
155 L.Ed.2d 88 (2003), in which the Supreme Court holds that:
for federal criminal defendants who
do not file a petition for certiorari with this Court on
direct review, § 2255's one-year limitation period
starts to run when the time for seeking such review expires.
Clay, 537 U.S. at 532 (emphasis added).
Clay is inapposite because: (1) it deals with the
calculation of the statute of limitation period set forth in
§ 2255; and, (2) the federal prisoner in Clay
timely engaged in the process of direct review of his
convictions. Id. at 524. Petitioner did not timely
initiate the direct review process, nor does his application
to file appeal out of time constitute initiation of the
direct review process.
admits that he failed to timely file an application to
withdraw his guilty plea. Objection at 3. In order “to
appeal from any conviction on a plea of guilty or nolo
contendere, ” a defendant must file “in the trial
court clerk's office an application to withdraw the plea
within ten (10) days from the date of the pronouncement of
the Judgment and Sentence.” Rule 4.2, Rules of the
Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch.
18, App. Failure to timely file such an application renders
the judgment final. Fisher v. Gibson, 262 F.3d 1135,
1142 (10th Cir. 2001) (finding that Petitioner's
unappealed guilty pleas became “final ten days after
entry of Judgment and Sentence”). Because an
application to withdraw guilty plea begins the direct review
process, the deadline to file the application is the
“expiration of the time for seeking such review.”
Therefore, the expiration of the time for seeking direct
review of Petitioner's convictions was May 25, 2017, ten
days after he entered his plea of guilty.
filed his motion to withdraw his guilty plea and to appeal
out of time in the district court on March 19, 2018. Report
at 2. Petitioner filed an appeal of the denial of that motion
on June 6, 2018, which was denied on August 9, 2018. Report
at 3-4; Petition at 3; See also, Oklahoma Supreme
Court Network, No. PC-2018-574. Because the Court cannot add
significantly to Judge Purcell's thorough analysis of the
application of statutory tolling ...