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Dudley v. State

United States District Court, W.D. Oklahoma

August 1, 2019

JERRY DON DUDLEY, Petitioner,
v.
STATE OF OKLAHOMA, Respondent.

          REPORT AND RECOMMENDATION

          GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.[1] For the following reasons, it is recommended the Petition be dismissed as untimely.

         I. Background

         Petitioner 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.[2] 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 2.[3] A 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 Influence. Id.

         Petitioner 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.[4] 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. 1-1.

         By this 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. at 3-4.

         II. Screening Requirement

         Under 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 recommendation).

         III. Statute of Limitations

         A. Applicable Limitations Period

         Under 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 1.[5] 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.[6] 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 Sentence.”).

         Thus, 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.

         B. Statutory Tolling

         As noted, Petitioner did not file his first Application for Post-Conviction Relief until October 28, 2014. Pet. at 2.[7] 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 ...


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