United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se, has filed this
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. Petitioner is challenging the sentences imposed
following his convictions of Murder in the Second Degree and
two counts of Driving Under the Influence/Causing Great
Bodily Injury entered in the District Court of Oklahoma,
Oklahoma County, No. CF-2006-2665. The matter has been
referred to the undersigned Magistrate Judge for initial
proceedings consistent with 28 U.S.C. §636(b)(1)(B) and
the undersigned has undertaken a preliminary review of the
sufficiency of the Petition pursuant to Rule 4, Rules
Governing Section 2254 Cases in the United States District
Courts. For the following reasons, it is
recommended the Petition be dismissed as untimely.
was convicted of Murder in the Second Degree and two counts
of Driving Under the Influence/Causing Great Bodily Injury
following a blind plea of guilty on April 4, 2007. Doc. No. 1
(“Pet.”) at 1; see also Oklahoma State
Courts Network, Oklahoma County District Court, No.
CF-2006-2665. Petitioner was sentenced to imprisonment
for 22 years for his conviction of Murder in the Second
Degree and five years each for his convictions of Driving
Under the Influence. Id. On November 19, 2007,
Petitioner filed a Motion for Sentence Modification. Pet. at
hearing was held on the same on January 3, 2008, and the
trial court modified Petitioner's sentences to three
years each for his convictions of Driving Under the
filed an Application for Post-Conviction Relief with the
Oklahoma County District Court on October 28, 2014.
Id. The court denied the same on April 6, 2015. Doc.
No. 1-3. On February 5, 2018, Petitioner filed a Second
Application for Post-Conviction Relief requesting leave of
court to file an appeal out of time. Pet. at 3. The trial court
denied the same on June 5, 2018. Doc. No. 1-2. Petitioner
appealed the denial to the Oklahoma Court of Criminal
Appeals, which denied the same on July 27, 2018. Doc. No.
action, Petitioner requests habeas relief with regard to the
sentences he received from the trial court. See
generally Pet. He contends that his Fourteenth Amendment
right to due process and his Sixth Amendment right to
effective assistance of counsel were violated during his
sentencing because false statements were offered to the court
indicating that he fled the scene of the underlying
automobile accident which his attorney failed to refute. Pet.
Rule 4 of the Rules Governing Section 2254 Cases, the Court
is required to promptly examine a habeas petition and to
summarily dismiss it “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief . . . .” Rule 4, Rules Governing
§ 2254 Cases. “[B]efore acting on its own
initiative, a court must accord the parties fair notice and
an opportunity to present their positions.” Day v.
McDonough, 547 U.S. 198, 210 (2006). Petitioner has such
notice by this Report and Recommendation, and he has an
opportunity to present his position by filing an objection to
the Report and Recommendation. Further, when raising a
dispositive issue sua sponte, the district court
must “assure itself that the petitioner is not
significantly prejudiced . . . and determine whether the
interests of justice would be better served by addressing the
merits . . . .” Id. (quotations omitted);
Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th
Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL
396069, at *3 (10th Cir. July 29, 1994) (noting no due
process concerns with the magistrate judge raising an issue
sua sponte where the petitioner could “address
the matter by objecting” to the report and
Statute of Limitations
Applicable Limitations Period
28 U.S.C. § 2244(d)(1)(A), a petitioner must seek habeas
relief within one-year and said limitations period generally
begins to run 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.”
Petitioner was convicted on April 4, 2007. Pet. at
Petitioner did not timely move to withdraw his plea or file a
direct appeal. Pet. at 2. Thus, Petitioner's conviction
became “final” under 28 U.S.C. §
2244(d)(1)(A) on Monday, April 16, 2007, when the ten-day
time period for Petitioner to file an application to withdraw
his guilty plea expired. Rule 4.2(A), Rules of the Oklahoma
Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.;
Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.
2001) (noting the petitioner's Oklahoma convictions
became “final ten days after entry of Judgment and
Petitioner had one year beginning on April 17, 2007, to file
his federal habeas petition commensurate with 28 U.S.C.
§ 2244(d)(1)(A). Absent statutory or equitable tolling,
his one-year filing period expired on April 17, 2008.
noted, Petitioner did not file his first Application for
Post-Conviction Relief until October 28, 2014. Pet. at
Under 28 U.S.C. § 2244(d)(2), “The 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” will
generally toll the statute of limitations applicable to
filing a habeas petition. (emphasis added). Petitioner did
not file his post-conviction application until after his
statute of limitations had already expired. See Clark v.
Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006)
(“Only state petitions ...