United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
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.
State court proceedings
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. Consistent with the jury's
recommendations, the trial court sentenced petitioner to
serve 99 years in prison and imposed a $10, 000
fine. Dkt. # 18-1, at 1.
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 In an unpublished summary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2014) (unpublished), at 1-5.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.
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2016) (unpublished), at 4.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.
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.
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.
Federal court proceedings
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.
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.
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).
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). 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).
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,
filed six days too late. Id. at 3-4. Respondent
further argues that ...