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Womble v. Braggs

United States District Court, N.D. Oklahoma

July 18, 2019

JOSEPH ZACHARY WOMBLE, Petitioner,
v.
JEORLD BRAGGS, Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT COURT CHIEF JUDGE

         Petitioner 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.[1] 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.

         BACKGROUND

         I. Negotiated guilty plea

         On 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);[2] 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.

         Petitioner 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.

         II. State court proceedings

         Almost 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.[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.

         III. Federal habeas proceeding

         On April 3, 2017, [4] 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.[5] 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.

         In 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 tolling.

         Petitioner 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 incompetency.

         ANALYSIS

         I. The petition is untimely under 28 U.S.C. § 2244(d)(1)(A).

         As 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).[6]

         Petitioner 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.[7] Applying § 2244(d)(1)(A), the petition for writ of habeas corpus, filed on April 3, 2017, is clearly untimely.

         II. Petitioner cannot benefit from statutory tolling.

         The 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 ...


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