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Bryant v. Dowling

United States District Court, N.D. Oklahoma

July 23, 2019

JOHNNY KASH BRYANT, Petitioner,
v.
JANET DOWLING, Respondent.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE.

         Petitioner Johnny Kash Bryant, a state inmate appearing pro se, filed an amended 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 10), seeking federal habeas relief from the judgment and sentence entered against him in the District Court of Tulsa County, No. CF-2012-297. Before the Court is respondent's motion to dismiss (Dkt. # 17) the amended petition as time-barred under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations. Respondent filed a brief in support of the motion to dismiss (Dkt. # 18), and petitioner filed a response (Dkt. # 21). For the reasons that follow, the Court denies respondent's motion to dismiss the amended petition as time-barred and directs respondent to file an answer responding to the allegations in the amended petition.

         I. Background

         A. State court proceedings

         A jury found petitioner guilty, in the District Court of Tulsa County, No. CF-2012-297, of one count of lewd molestation, in violation of Okla. Stat. tit. 21, § 1123 (2011). Dkt. # 10, at 1-2; Dkt. # 18-1, at 1.[1] Consistent with the jury's recommendations, the trial court sentenced petitioner to serve 99 years in prison and imposed a $10, 000 fine.[2] Dkt. # 18-1, at 1.

         Represented by counsel, petitioner filed a timely direct appeal. Id.; Dkt. # 10, at 2. In an unpublished summary opinion filed September 10, 2014, in No. F-2013-805, the Oklahoma Court of Criminal Appeals (OCCA) affirmed petitioner's conviction and sentence. Dkt. # 18-1, Bryant v. State, No. F-2013-805 (Okla. Crim. App. 2014) (unpublished), at 1-5. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Dkt. # 18, at 1.

         Petitioner filed his first application for post-conviction relief in state district court on June 18, 2015. Dkt. # 18, at 2; Dkt. # 21, at 2. The state district court denied his application on August 2, 2016. Dkt. # 18-2, at 1. Petitioner timely filed a notice of intent to appeal, but filed his petition-in-error seven days late, on September 8, 2016. Dkt. # 18-3, Bryant v. State, No. PC-2016-816 (Okla. Crim. App. 2016) (unpublished), at 4. As a result, the OCCA issued an order on December 14, 2016, declining jurisdiction and dismissing his post-conviction appeal. Id. at 1, 4.

         Two weeks later, on December 28, 2016, petitioner filed a second application for post-conviction relief in state district court, seeking permission to file a post-conviction appeal out of time. Dkt. # 18-4, at 1, 5. By order filed February 27, 2017, the state district court found that petitioner “attempted to timely file his petition in error” to appeal the denial of his first application for post-conviction relief, “but it was erroneously mailed to the District Court” rather than the OCCA. Id. at 6. The state district court further found that petitioner's post-conviction appeal from the denial of his first application for post-conviction relief “would have been timely had it been mailed to the correct courthouse.” Id. Based on these findings, the state district court further found that petitioner had been “denied a post-conviction appeal through no fault of his own” and therefore granted petitioner's request for a recommendation that he be permitted to file an out-of-time post-conviction appeal. Id. In an unpublished order filed March 31, 2017, in No. PC-2017-256, the OCCA adopted the state district court's recommendation and granted petitioner's request to file an out-of-time post-conviction appeal. Dkt. # 18-5, Bryant v. State, No. PC-2017-256 (Okla. Crim. App. 2017) (unpublished), at 1-2. Petitioner timely perfected that appeal. Dkt. # 18-6, Bryant v. State, No. PC-2017-379 (Okla. Crim. App. 2017) (unpublished), at 1. By order filed June 21, 2017, the OCCA affirmed the state district court's decision denying petitioner's first application for post-conviction relief. Id. at 1-5.

         Petitioner filed a third application for post-conviction relief on August 8, 2017. Dkt. # 18-7, at 1. By order filed August 23, 2017, the state district court denied petitioner's application. Id. at 1-7. Petitioner timely appealed, and, by order filed November 21, 2017, in No. PC-2017-941, the OCCA affirmed the state district court's decision. Dkt. # 18-8, Bryant v. State, No. PC-2017-941 (Okla. Crim. App. 2017) (unpublished), at 1-3.

         B. Federal court proceedings

         On August 16, 2017, while petitioner's third application for post-conviction relief was pending in state district court, petitioner commenced this federal habeas action by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1) and a motion to stay (Dkt. # 2). By order filed August 24, 2017 (Dkt. # 3), the Court denied petitioner's request for a stay and directed petitioner to either pay the filing fee or seek leave to proceed without prepayment. He paid the filing fee on September 18, 2017. Dkt. # 5.

         On December 6, 2017, petitioner filed a motion to amend or supplement his habeas petition (Dkt. # 6), along with a proposed amended petition. By order filed August 3, 2018 (Dkt. # 9) the Court granted petitioner leave to file an amended petition, directed the Clerk of Court to file petitioner's proposed amended petition as of the date it was submitted, and declared moot the original habeas petition. The Clerk of Court docketed the amended petition (Dkt. # 10) as filed on December 6, 2017. In a separate order, filed August 6, 2018 (Dkt. # 11), the Court directed respondent to show cause why the writ should not issue.

         In response to the Court's show cause order, respondent filed a motion to dismiss the amended petition as time-barred under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations (Dkt. # 17), along with a supporting brief (Dkt. # 18). Petitioner filed a timely response (Dkt. # 21).

         II. Analysis

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), state prisoners generally have one year from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” to file a § 2254 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A).[3] 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.” Id. § 2244(d)(2). But only applications that are “properly filed” in state court before the one-year period expires will support statutory tolling. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006). Because the AEDPA's statute of limitations is not jurisdictional, the one-year limitation period also may be tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 645 (2010). And, in rare cases, the untimeliness of a petition may be excused if the petitioner presents a credible claim of actual innocence. McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013).

         Respondent contends the amended petition is untimely under § 2244(d)(1)(A). Dkt. # 18, at 2. In respondent's view, petitioner's conviction became final on December 19, 2014, and, with the benefit of statutory tolling, petitioner's one-year limitation period expired on November 28, 2017. Id. at 1-4. Thus, respondent argues, the amended petition filed December 4, 2017, [4] was filed six days too late. Id. at 3-4. Respondent further argues that ...


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