United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT COURT CHIEF JUDGE
Joseph Zachary Womble, a state inmate appearing pro
se, brings this 28 U.S.C. § 2254 habeas corpus
action to challenge the constitutional validity of the
judgment and sentence entered against him in the District
Court of Tulsa County, No. CF-2011-3997. Before the Court is
Respondent's motion to dismiss the habeas petition as
time-barred under 28 U.S.C. § 2244(d)(1)'s one-year
statute of limitations (Doc. 22). Petitioner did not file a
response to the motion. For the reasons that follow, the Court
finds that the habeas petition is untimely and that
Petitioner fails to make the requisite showings to excuse the
untimeliness of his petition. The Court therefore grants
Respondent's motion and dismisses the petition for writ
of habeas corpus, with prejudice, as time-barred.
Negotiated guilty plea
November 21, 2011, while represented by counsel, Petitioner
entered a negotiated plea of guilty to one count of
first-degree robbery, in violation of Okla. Stat. tit. 21,
§ 798, after former conviction of a felony. See
Doc. 23-1 (Plea of Guilty/Summary of Facts); Doc. 23-2
(Judgment and Sentence). In support of his guilty plea,
Petitioner admitted that on October 16, 2011, in Tulsa
County, he “went into Walmart and into Arvest bank [and
he] handed the teller a note telling them [he] had a gun and
to give [him] money.” Doc. 23-1, at 3. The trial court
found Petitioner competent for the purpose of the plea
hearing, found a factual basis for the guilty plea, and
accepted Petitioner's plea as knowing and voluntary.
Id. at 4-5. In accordance with the plea agreement,
the trial court imposed a 13-year prison term, with the first
11 years to be served in custody and the last two years
suspended. Id. at 5; Doc. 23-2, at 1. The trial
court advised Petitioner of his appeal rights, and Petitioner
indicated on the plea form that he understood those rights.
Doc. 23-1, at 6.
did not move to withdraw his plea within 10 days of his
sentencing hearing, as required by Oklahoma law, and he did
not pursue a timely appeal challenging his conviction or
sentence. Doc. 23, at 1; Doc. 23-3, at 1; Doc. 23-7, at 2.
State court proceedings
two years after his sentencing hearing, Petitioner began
pursuing legal remedies in state court:
. On October 29, 2013, Petitioner filed
a pro se request for a two-year judicial review.
Doc. 23-3. The state district court summarily denied
Petitioner's request on November 15, 2013. Doc. 23-4.
. On January 31, 2014, Petitioner filed a
pro se motion for transcripts at public expense.
Doc. 23-5. Petitioner specifically requested a transcript of
the November 21, 2011, hearing and indicated he was preparing
an application for post-conviction relief and request for an
appeal out of time. Id. at 2-3. The state district
court denied the motion by order signed February 14, 2014,
and filed February 21, 2014. Doc. 23-6.
. On June 13, 2014, Petitioner filed a
pro se application for post-conviction relief in state
district court, seeking an appeal out of time and alleging
three propositions of error. Doc. 23-7. He alleged (1) the
trial court abused its discretion by failing to hold a
competency hearing, (2) he received ineffective assistance of
counsel, rendering his plea involuntary, and (3) the trial
court lacked subject-matter jurisdiction because Petitioner
robbed a federally-insured bank. Id. By order filed
December 9, 2014, the state district court found
“nothing to support [Petitioner's claim that he was
denied an appeal through no fault of his own” and
recommended that Petitioner be denied an appeal out of time.
Doc. 23-8, at 2-3. Petitioner did not appeal from the state
district court's ruling. Doc. 23-12, at 3.
. On April 17, 2015, Petitioner filed a
pro se “motion to withdraw guilty plea,
” alleging his plea was not knowing and intelligent
because “there was no factual basis for the
plea.” Doc. 23-9, at 1-2. On June 15, 2015, Petitioner
moved to supplement the motion to withdraw plea with his
claim that the trial court lacked jurisdiction over the crime
of robbing a federally-insured bank. Doc. 23-10. The state
district court construed these two motions, collectively, as
a second application for postconviction relief and denied
relief in an order signed September 15, 2015, and filed
September 18, 2015. Doc. 23-12. Petitioner filed a timely
appeal. See Doc. 23-13 (Petition-in-Error, filed
Oct. 7, 2015). In an unpublished order filed January 12,
2016, in No. PC-2015-0884, the Oklahoma Court of Criminal
Appeals (OCCA) affirmed the denial of Petitioner's second
application for post-conviction relief. Doc. 23-16. In doing
so, the OCCA agreed with the state district court that
Petitioner's claims “that he was not competent at
the time he entered his plea and that he was denied the
effective assistance of counsel” were either waived or
procedurally barred. Id. at 1-2. The OCCA also
stated, “Petitioner has EXHAUSTED his
State remedies regarding the issues raised in the
applications for post-conviction relief. Subsequent
application on these issues is
BARRED.” Id. at 2.
. On September 16, 2015, while the appeal
from the denial of his second application for post-conviction
relief was pending, Petitioner filed a third application for
postconviction relief in state district court. Doc. 23-14.
Petitioner alleged (1) his plea was void because he was
incompetent to enter a plea and there was no factual basis
for his plea, (2) he was “innocent” of
first-degree robbery because the facts supported that he
committed second-degree robbery, (3) the indictment and
information were “fatally defective” because they
contained only the elements for second-degree robbery, (4)
counsel was ineffective “at all stages of the
proceeding, ” and (5) he should be resentenced because
he did not receive a presentence investigation report.
Id. at 2-7. In an order signed April 15, 2016, and
filed April 21, 2016, the state district court denied
Petitioner's third application for postconviction relief.
Doc. 23-17. The court found Petitioner's first, second
and fourth propositions were barred by res judicata, found
his fifth proposition was waived by his failure to assert it
in prior post-conviction applications, and denied his third
proposition on the merits. Id. at 5-7. In addition,
the court notified Petitioner that he could be subject to
sanctions if he continued to seek post-conviction relief on
the same issues. Id. at 7-8. Petitioner did not
appeal from the state district court's ruling.
. On October 3, 2016, Petitioner filed a
state habeas petition in the District Court of Beckham
County, asserting his incarceration was “illegal”
because he was not competent when he pleaded guilty. Doc.
23-18. The court dismissed the petition for lack of
jurisdiction on December 21, 2016. Doc. 23-19.
Federal habeas proceeding
April 3, 2017,  nearly four months after the dismissal of
his state habeas petition, Petitioner filed the instant
federal habeas petition in the United States District Court
for the Western District of Oklahoma. Doc. 1. The case was
transferred to this Court on June 23, 2017. Doc. 6.
Petitioner seeks federal habeas relief on three grounds: (1)
“Petitioner pled guilty while incompetent in violation
of his Fourteenth Amendment rights, ” Doc. 1, at 5, (2)
“[t]he trial court failed to sua sponte order a
competency hearing before accepting Petitioner's plea of
guilty, ” id. at 7, and (3) “counsel
ineffectively assisted Petitioner in violation of
Petitioner's Sixth and Fourteenth Amendment rights,
” id. at 8.
response to the petition, Respondent filed a motion to
dismiss the petition as time-barred (Doc. 22), and a brief in
support of the motion (Doc. 23). Respondent contends the
petition is untimely under 28 U.S.C. § 2244(d)(1)(A) and
the petition cannot be deemed timely through equitable
acknowledges that his petition is untimely, but seeks
equitable tolling of, or an equitable exception to, the
statute of limitations based on his alleged mental
The petition is untimely under 28 U.S.C. §
Respondent contends, and Petitioner acknowledges, the habeas
petition is untimely under 28 U.S.C. § 2244(d)(1)(A).
See Doc. 1, at 13-14; Doc. 5, at 2; Doc. 23, at 5.
That provision requires a state prisoner seeking federal
habeas relief to file a petition for writ of habeas corpus
within one year of the date the prisoner's state-court
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).
was convicted and sentenced on November 21, 2011. Docs. 23-1,
23-2. Petitioner did not move to withdraw his plea within 10
days of his sentencing hearing or timely seek direct review
of his state-court judgment. See Clayton v. Jones,
700 F.3d 435, 441 (10th Cir. 2012) (noting that Oklahoma law
requires criminal defendant to seek to withdraw guilty plea
within 10 days of sentencing if defendant intends to appeal);
Rule 4.2(A), Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2019) (requiring
criminal defendant who plans to pursue certiorari appeal to
file application to withdraw guilty plea within 10 days of
sentencing). Petitioner's conviction thus became final on
December 1, 2011, when the time for seeking direct review
expired. See 28 U.S.C. § 2244(d)(1)(A);
Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.
2006) (noting state prisoner's convictions became final
under Oklahoma law 10 days after sentencing when prisoner did
not move to withdraw plea or file direct appeal). His
one-year limitation period commenced the next day, December
2, 2011. See Harris v. Dinwiddie, 642 F.3d 902, 906
n.6 (10th Cir. 2011) (explaining limitation period begins to
run day after triggering event). Absent statutory or
equitable tolling, Petitioner's one-year period expired
on December 3, 2012. Applying § 2244(d)(1)(A), the
petition for writ of habeas corpus, filed on April 3, 2017,
is clearly untimely.
Petitioner cannot benefit from statutory tolling.
Court agrees with Respondent that Petitioner cannot benefit
from statutory tolling with respect to the one-year
limitation period provided under § 2244(d)(1)(A).
See Doc. 23, at 5-6. By statute, the one-year
limitation 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.” 28 U.S.C. §
2244(d)(2). However, to benefit from statutory tolling, a
state prisoner must “properly ...