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McCurley v. Crow

United States District Court, N.D. Oklahoma

July 18, 2019

KENNETH K. McCURLEY, Petitioner,
v.
SCOTT CROW, [1] Respondent.

          OPINION AND ORDER

          JAMES H. PAYNE JUDGE

         Petitioner Kenneth K. McCurley, 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-2009-3368. In that case, Petitioner entered negotiated pleas of guilty to second-degree murder and first-degree arson. The trial court imposed two 35-year prison sentences, to be served concurrently. Before the Court is Respondent's motion to dismiss the habeas petition as time-barred by 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations (Dkt. 12). Respondent filed a brief in support of the motion to dismiss (Dkt. 13), and Petitioner filed a timely response (Dkt. 14). For the reasons that follow, the Court grants Respondent's motion and dismisses the petition for writ of habeas corpus, with prejudice, as time-barred.

         BACKGROUND

         In an information filed July 17, 2009, in the District Court of Tulsa County, No. CF-2009-3368, the State of Oklahoma charged Petitioner with attempt to kill, in violation of Okla. Stat. tit. 21, § 653 (Count I), and first-degree arson, in violation of Okla. Stat. tit. 21, § 1401 (Count II). Dkt. 4-1, Brief in Support of Habeas Petition, at 30. The State alleged “Petitioner, on July 10, 2009, caused a flammable substance to be thrown onto his girlfriend, Nicole Partridge, in the kitchen of a Tulsa residence, and that Petitioner then threw a cigarette onto her igniting the substance and resulting in burns to 80% of her body.” Id. at 38. On August 3, 2009, after Partridge died, the State filed an amended information, amending Count I to charge Petitioner, in the alternative, with first-degree murder or felony murder, in violation of Okla. Stat. tit. 21, § 701.7. Id. at 30-31.

         On February 2, 2012, Petitioner, represented by counsel, entered negotiated pleas of guilty to second-degree murder, in violation of Okla. Stat. tit. 21, § 701.8 (Count I), and first-degree arson, in violation of Okla. Stat. tit. 21, § 1401 (Count II). Id. at 31; Dkt. 13-2, Judgment and Sentence, at 1-3, 5. As a factual basis for his guilty plea, Petitioner provided the following written statement,

On 7/10/09, in Tulsa Co[unty], I engaged in conduct that showed reckless disregard for human life, and Nicole Partridge was burned and later died from those burns. My conduct was splashing a flammable liquid that ignited and burned Ms. Partridge. We were in the house when the fire started.

Dkt. 4, Brief in Support of Habeas Petition, at 73 (Plea of Guilty/Summary of Facts). In accordance with the plea agreement, the trial court imposed two 35-year prison terms and ordered them to be served concurrently. Id. at 77. The trial court advised Petitioner of his appeal rights, “but he made no attempt to withdraw his pleas within the ten (10) day period allowed by law or otherwise initiate a direct appeal of his conviction.” Id.

         Between May 2014 and May 2015, Petitioner filed several letters in state district court. Dkt. 13-1, Docket sheet, No. CF-2009-3368, at 3.

• On May 5, 2014, Petitioner requested a copy of the Plea of Guilty/Summary of Facts. Dkt. 13-3, Letter filed May 5, 2014, at 1.
• On April 6, 2015, Petitioner requested a split sentence. Dkt. 13-4, Letter filed April 6, 2015, at 1.
• On April 24, 2015, Petitioner requested leave to withdraw his guilty plea “out of time, ” alleging (1) plea counsel effectively abandoned him during the time he could move to withdraw his plea, and (2) he was “actually innocent” because the prosecuting attorney admitted at sentencing “that the crime was a complete accident.” Dkt. 13-6, Letter filed April 24, 2015, at 1-2.
• On May 26, 2015, Petitioner renewed his request for a split sentence. Dkt. 13-7, Letter filed May 26, 2015, at 1-2.

         On October 27, 2015, the State filed a motion to dismiss, urging the state district court to construe Petitioner's April 24, 2015 Letter as an application for post-conviction relief seeking an appeal out of time. Dkt. 13-8, State's Motion to Dismiss, at 1-3. The State further urged the court to dismiss the application for failure to comply with statutory requirements for seeking post-conviction relief. Id. On October 30, 2015, the state district court construed Petitioner's request for leave to withdraw his guilty plea as an application for post-conviction relief seeking an appeal out of time and dismissed the application, without prejudice to refiling, citing Petitioner's failure to file a “verified application” as required by Okla. Stat. tit. 22, § 1081. Dkt. 4-1, Brief in Support of Habeas Petition, at 32-33.

         On January 15, 2016, Petitioner filed an application for post-conviction relief in state district court, seeking an appeal out of time and requesting an evidentiary hearing. Dkt. 4, Brief in Support of Habeas Petition, at 31-75. Petitioner filed an addendum to his application on March 7, 2016. Id. at 27-30; Dkt. 13-1, Docket sheet, No. CF-2009-3368, at 4. On August 7, 2017, the state district court construed the application and addendum as a second application for post-conviction relief asserting five propositions of error: (1) Petitioner was denied his right to a direct appeal through no fault of his own, (2) Petitioner is actually and factually innocent, (3) Petitioner was denied his right to effective assistance of plea counsel, (4) Petitioner's plea was not knowing and voluntary, and (5) Petitioner's plea, convictions, and sentences are “illegal under 21 O.S. 2011, § 11 and the 14th Amendment and void due to the misjoinder of charges and Double Jeopardy that would require a merger that is prohibited under 21 O.S. 2011, § 701.8(2).” Dkt. 4, Brief in Support of Habeas Petition, at 94-95. The state district court declined to recommend an appeal out of time and denied post-conviction relief. Id. at 95-100; Dkt. 4-1, Brief in Support of Habeas Petition, at 1-6. In denying post-conviction relief, the state district court found (1) Petitioner's guilty pleas were knowing, intelligent and voluntary, (2) Petitioner waived all non-jurisdictional defenses, (3) counsel was not ineffective, and (4) Petitioner failed to establish his actual innocence. Dkt. 4, at 97-100; Dkt. 4-1, at 1-4.

         Petitioner timely appealed the denial of his second application for post-conviction relief. Dkt. 4-1, Brief in Support of Habeas Petition, at 10-29. In an unpublished order filed June 13, 2018, in No. PC-2017-900, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial of Petitioner's second application for post-conviction relief and denied his request for an appeal out of time. Id. at 38-45.

         Petitioner filed the instant federal habeas petition (Dkt. 3), along with a brief in support of the petition (Dkts. 4, 4-1), on September 21, 2018.[2] He seeks habeas relief on the following grounds:

1. Petitioner [was] denied his right to direct appeal through no fault of his own.
2. Petitioner is actually innocent of Count 1, 2nd degree murder 21 O.S. 701.8 and Count 2, 1st degree Arson 21 O.S. 1401.
3. Petitioner [was] denied his 6th and 14th Amendment rights to effective assistance of counsel.
4. Plea was involuntary, unintelligent and entered without knowledge of law and its full consequences and under duress and threat of abandonment of counsel.
5. Plea conviction and sentence is illegal under 21 O.S. ยง 11, and the 14th Amendment and void due to misjoinder of charges and Double Jeopardy violations that would require a merger ...

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