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Lolar v. Crow

United States District Court, N.D. Oklahoma

August 15, 2019

MARCUS E. LOLAR, Petitioner,
SCOTT CROW, [1] Respondent.


          Terence C. Kern United States District Judge.

         Petitioner Marcus Lolar, a state inmate appearing pro se, [2] commenced this action on July 30, 2018, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. 1).[3]Before the Court is Respondent's motion to dismiss the habeas petition as time-barred under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations (Dkt. 11). Respondent filed a brief in support of the motion (Dkt. 12), and Petitioner filed a response (Dkt. 15). For the reasons that follow, the Court grants Respondent's motion and dismisses the petition for writ of habeas corpus as time-barred.

         I. Background[4]

         A. Jury trial and direct appeal

         In January 2014, following a two-day trial in the District Court of Osage County, No. CF-2012-360, a jury convicted Petitioner of first-degree robbery, in violation of Okla. Stat. tit. 21, § 798 (2011), and second-degree burglary, in violation of Okla. Stat. tit. 21, § 1435 (2011). Dkt. 1, at 1-2; Dkt. 12-27, at 12-14.[5] Evidence presented at trial established that on September 20, 2012, Petitioner broke into the unoccupied home of Earnest Shannon McGuire, in Pawhuska, Oklahoma, possibly through a back window. Dkt. 22-1 (Trial Transcript), Lolar v. Allbaugh, N.D. Okla. No. 16-CV-692-GKF-JFJ, at 96-107, 128-35, 142-46, 200-207, 220-28. When McGuire returned home, Petitioner physically assaulted McGuire, stabbed him in the neck with a steak knife, causing non-fatal wounds, demanded money, and took approximately $300 from him. Id. The jury affixed punishment at 16 years' imprisonment for the robbery and two years' imprisonment for the burglary. Dkt. 12-27, at 14. In March 2014, the trial court sentenced Petitioner accordingly and ordered the sentences to be served concurrently. Id. at 15.

         Represented by counsel, Petitioner filed a direct appeal, claiming (1) prosecutorial misconduct deprived him of a fair trial and (2) trial counsel's inadequate performance deprived him of his right to the effective assistance of counsel. Dkt. 12-1, Lolar v. State, No. F-2014-257 (Okla. Crim. App. 2015) (unpublished), at 1. In an unpublished summary opinion filed April 21, 2015, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's convictions and sentences. Id. at 1-3.

         B. State post-conviction proceedings

         Proceeding pro se, Petitioner pursued various post-conviction remedies. First, on May 15, 2015, Petitioner filed a motion for judicial review, seeking modification of his sentence. Dkt. 12-27, at 19. The state district court denied the motion four days later. Id.

         One month later, on June 22, 2015, Petitioner filed an application for post-conviction relief (hereafter, PCRA I), claiming he was deprived of “due process” and his rights under Oklahoma's Postconviction DNA Act, Okla. Stat. tit. 22, §§ 1373.2, 1373.4. Dkt. 12-2, at 2.[6] Citing Brady v. Maryland, 373 U.S. 83 (1963), he alleged exculpatory evidence was withheld because the State, his trial counsel, and his appellate counsel failed to request DNA testing on fingerprints from a window of the victim's house and blood and fingerprints from the knife used to stab the victim. Id. at 2, 16. Petitioner requested DNA testing of this evidence and attached a copy of a legislative draft of Oklahoma's Postconviction DNA Act. Id. at 4-16.

         On September 24, 2015, Petitioner filed two motions seeking an evidentiary hearing, along with a notarized affidavit. Dkt. 12-3; Dkt. 12-27, at 20. In the affidavit, Petitioner reasserted that neither the State nor his lawyers requested DNA testing of crime scene evidence, in violation of his 14th Amendment due process rights and Brady. Dkt. 12-3, at 2. Petitioner again requested DNA testing under the Postconviction DNA Act. Id.

         On March 14, 2016, Petitioner filed a “motion requesting forensic DNA testing” and attached a notarized affidavit. Dkt. 12-4. Citing the Postconviction DNA Act, Petitioner once again requested testing of fingerprints from the victim's window and fingerprints and blood from the knife. Id. at 1.

         Seven days later, on March 21, 2016, the state district court entered an order noting that Petitioner filed PCRA I and other motions and directing the State to “file a response within 20 days to all pending motions.” Dkt. 12-9, at 20. The court stated that if the State failed to file a response, the court would “summarily grant the relief requested” in the motions. Id. The State did not file a response within 20 days. Dkt. 12-27, at 23.

         On April 22, 2016, Petitioner filed a second application for post-conviction relief (hereafter, PCRA II), a brief in support, and a motion for evidentiary hearing. Dkt. 12-5, at 1, 7-16. Petitioner identified two propositions of error in PCRA II. Id. at 2, 5. In proposition one, Petitioner alleged a due-process violation and cited Brady, the Fourth Amendment, and the Fourteenth Amendment. Id. at 2. In his supporting brief, he argued that his “due process” claim arose from the State's failures (1) to “process” exculpatory DNA evidence and (2) to prove every element of the crimes charged. Id. at 10. As to the second failure, Petitioner cited Sullivan v. Louisiana, 508 U.S. 275 (year), and alleged the State “didn't prove the DNA fingerprints on the window.” Id. In proposition two, Petitioner cited Strickland v. Washington, 466 U.S. 668 (1984), and alleged a violation of his Sixth Amendment right to the effective assistance of appellate counsel. Id. at 5, 10. In his supporting brief, Petitioner identified four issues appellate counsel omitted from his direct appeal brief: (1) that the evidence is insufficient to support his convictions, (2) that trial counsel failed to impeach a witness based on bias and inconsistent statements, (3) that Petitioner's procedural due process rights were violated because he was “never formally arraigned or given a preliminary hearing” on the amended information, and (4) that an evidentiary hearing should have been held to challenge the truthfulness of the probable cause affidavit. Id. at 10-14.[7]

         Petitioner filed a “motion to execute court order” on May 2, 2016, asking the state district court to enforce its March 21, 2016 order that directed the State to respond to “all pending motions.” Dkt. 12-9, at 21. In that motion, Petitioner asserted that the State had not yet responded to PCRA I or any pending motions. Id.

         The next day, May 3, 2016, the State filed a four-page “response to [Petitioner's] motion requesting forensic DNA testing.” Dkt. 12-6, at 1.[8] The State argued Petitioner's March 14, 2016 motion requesting forensic DNA testing was facially defective because the attached affidavit was not sworn and Petitioner failed to assert his innocence in either the motion or the affidavit. Id. at 2. The State further argued Petitioner's March 14, 2016 motion was either his second or third request for DNA testing under the Postconviction DNA Act and was procedurally barred because (1) Petitioner filed a motion for judicial review on May 19, 2015, but “failed to request the DNA testing which he now seeks, ” and (2) previously requested DNA testing through his September 24, 2015 motion for evidentiary hearing-a motion the State acknowledged had not been considered by the state district court. Id. at 2-3. To support its procedural bar argument, the State cited Okla. Stat. tit. 22, § 1086, a provision of Oklahoma's Postconviction Procedure Act that requires all grounds for relief to be raised in in an original, supplemental or amended application for post-conviction relief. Id. at 3. Ultimately, the State urged the court to deny Petitioner's March 14, 2016 motion requesting forensic DNA testing. Id. at 3-4.

         In a one-page “order denying motions and petition for post conviction relief, ” dated May 3, 2016, and filed May 5, 2016, the state district court found that it “should adopt the reasoning of the State in its Response filed May 3, 2016 and deny the motions filed by the [Petitioner].” Dkt. 12-7.

         Petitioner timely perfected a post-conviction appeal from the May 5, 2016 order. Dkt. 12-8; Dkt. 12-27, at 24. In his appeal brief, Petitioner argued the state district court erred in concluding that his requests for relief under the Postconviction DNA Act, as asserted in PCRA I and his September 24, 2015 motion for an evidentiary hearing, were procedurally barred. Dkt. 12-9, at 1-4. He alleged that, contrary to the State's position, he submitted notarized affidavits in support of his requests and he had sufficiently proclaimed his innocence. Id. at 3-4. He also asserted that the State failed to respond to the state district court's March 21, 2016 order directing a response and failed to file a response to PCRA I within 30 days as required by Okla. Stat. tit. 22, § 1083(A). Id. at 3.

         On June 27, 2016, while his post-conviction appeal was pending, Petitioner filed a “motion for disposition and favorable judgement” in state district court. Dkt. 12-27, at 25. Petitioner advised the court that the State had not filed an answer or response to PCRA II and had not requested additional time to do so. See Doc. #CC16062800000070,νmber=CF-2012-00360&cmid=6824, last visited August 4, 2019. Petitioner asked the court to deem PCRA II “confessed” by the State and grant Petitioner the relief requested therein. Id.[9]

         By order filed July 12, 2016, in Petitioner's post-conviction appeal, No. PC-2016-0457, the OCCA remanded the case to the state district court “for entry of an order setting forth findings of fact and conclusions of law addressing Petitioner's application for post-conviction relief requesting DNA testing pursuant to the Post-Conviction DNA Act, 22 O.S.Supp. 2013, §§ 1373-1373.7.” Dkt. 12-10, at 1-2. The OCCA found no support for the State's position, adopted by the state district court, that Petitioner's request for DNA testing was procedurally barred because the record did “not include any previous District Court order addressing Petitioner's request for DNA testing.” Id. at 2.

         Pursuant to the OCCA's remand order, the state district court entered an order on August 10, 2016, denying Petitioner's requests for post-conviction relief. Dkt. 12-11. The court acknowledged that Petitioner filed two separate applications for post-conviction relief, and described the propositions of error Petitioner asserted in PCRA I and PCRA II. Id. at 3-5. The court noted that both applications for post-conviction relief referenced “due process, ” Brady, and ineffective assistance of appellate counsel, but the court stated Petitioner's “primary complaint is that the State did not provide him with exculpatory evidence.” Id. at 3-5, 9-10. Regarding Petitioner's requests for DNA testing, the court found, based on its review of the trial record, that “there were no prints on the bloody steak knife” and that the window had not been dusted for fingerprints. Id. at 5-9. The court reasoned that ordering the State to comply with Petitioner's request for DNA testing would be “an exercise in futility” because “no further evidence exists.” Id. at 10. The court also readopted the State's arguments that Petitioner's requests for relief under the Postconviction DNA Act were procedurally barred and not supported by an assertion of innocence or sworn affidavit. Id. at 7, 10. The court further reasoned that Petitioner “had ample opportunities” to request DNA testing “prior to trial, during trial, on appeal, and on motion to review which all came after the effective date of Brady, The Oklahoma Criminal Discovery Code and as a common law discovery tool at preliminary hearing.” Id. at 10. Finally, the court concluded, based on its review of the trial record, that the evidence “overwhelmingly” supported the jury's guilty verdicts. Id. The court thus denied Petitioner's applications for post-conviction relief, his motions for an evidentiary hearing, and his “motion for disposition and favorable judgement.” Id. at 11.

         On August 19, 2016, Petitioner filed a “motion in response in objection” to the state district court's August 10, 2016 order. Dkt. 12-12. In that motion, Petitioner raised three primary objections: (1) that the State's response was limited to his March 14, 2016 motion requesting forensic DNA testing and did not address PCRA I, (2) that he had, in fact, asserted his innocence in a sworn affidavit, and (3) that the state district court erred in “attempting to lump together” Petitioner's separate applications for post-conviction relief under the Postconviction DNA Act (PCRA I) and the Postconviction Procedure Act (PCRA II), particularly when the State never filed a response to PCRA II. Id. at 1-2.

         In an unpublished order filed August 31, 2016, in Nos. PC-2016-0457 and MA-2016-0728, the OCCA affirmed the state district court's denial of Petitioner's request for post-conviction DNA testing and denied his petition for writ of mandamus. Dkt. 12-13, at 1-4. The state district court received the mandate from the OCCA in Petitioner's post-conviction appeal on September 2, 2016. Dkt. 12-27, at 26.

         Between September 29, 2016, and April 7, 2017, Petitioner filed five motions and a petition for writ of mandamus in state district court.[10] The first four motions and the mandamus petition sought relief relating to PCRA I and Petitioner's requests for DNA testing, whereas Petitioner's April 7, 2017 motion to dismiss reasserted that the State failed to respond to PCRA II. See Dkts. 12-17 through 12-22. By order filed July 10, 2017, the state district court denied all five motions and the mandamus petition. Dkt. 12-23. With respect to the motion to dismiss, the court stated (1) that it had denied both PCRA I and PCRA II in its May 5, 2016 order and (2) that Petitioner had appealed the denial of both PCRA I and PCRA II through his post-conviction appeal. Id. at 1-2, ¶¶ 5-6, 10 and 12. Petitioner did not seek further review of the July 10, 2017 order. Dkt. 12-27, at 28.[11]

         Between January 16, 2018, and March 12, 2018, Petitioner filed five motions seeking either to supplement or amend PCRA II or to obtain a ruling on PCRA II. Dkt. 12-27, at 28-29. On March 12, 2018, Petitioner also initiated a third mandamus action in the OCCA by filing a “motion to compel Osage County District Court to answer Petitioner's post-conviction application stamped file dated 4/22/16.” Doc. #1039528923,νmber=MA-2018-257&cmid=123546, last visited August 4, 2019. On March 28, 2018, the OCCA declined jurisdiction and dismissed the action, citing Petitioner's failure to provide adequate notice to the proper party. See Id. Doc. #1039531203.

         Petitioner commenced a fourth mandamus action in the OCCA, No. MA-2018-392, on April 18, 2018, by filing a “motion to compel Osage County District Court to Answer Petitioner's Post-Conviction Application Stamped File dated 4/22/16.” Dkt. 12-14. In the motion, Petitioner alleged PCRA II was still pending in state district court and documented his previous efforts to seek a ruling on PCRA II by filing various motions in state district court and seeking mandamus relief from the OCCA. Id. at 2-5.[12] By order filed May 15, 2018, the OCCA directed the state district court (1) to determine whether Petitioner filed an application for post-conviction relief on April 22, 2016, (2) if so, to advise the OCCA whether the court had already disposed of that application, and (3) to rule on the application within 30 days if the application was pending. Dkt. 12-15, at 1.

         The state district court filed a response to the OCCA's order on June 4, 2018. See Dkt. 12-16 (copy of response filed in state district court May 29, 2018). The court attached to its response (1) a copy of the docket sheet in No. CF-2012-360 and (2) its July 10, 2017 order. Id. at 4-15. The court described its July 10, 2017 order as “the dispositive order as to all pending motions, petitions and pleadings concerning [Petitioner], ” and stated that “[a]ll other matters were heard by the [OCCA] in MA-17-449.” Id. at 1. The court further stated,

The appeal time or motion for new trial time of the [state district court's] decision commenced July 10, 2017. Petitioner Lolar filed further pleadings as indicated on the docket commencing January 16, 2018 with a (a) Motion to Supplement the Record, (b) January 24, 2018 with a Motion for Status Conference, (c) January 19, 2018 Motion to Answer, (d) March 12, 2018 with a Motion to Supplement the Petitioner's Post-Conviction Brief filed April 22, 2016, Motion to Amend Petitioner's Motion for Evidentiary hearing in CF-12-360 Pertaining to His Post-Conviction Stamped Filed April 22, 2016. All of these pleadings are not properly before the undersigned as they are out of time for consideration and a nullity as the Court has previously ruled upon them July 10, 2017 some 6 months prior with notice to Petitioner.

Dkt. 12-16, at 1, ¶ 3 (boldface type and underlining in original). In paragraph five of the response, the court stated,

Petitioner was tried and convicted and later sentenced on March 14, 2014 before the undersigned. He appealed and lost by mandate affirmed filed in the District Court April 27, 2015 in F-14-257. He filed his Petition for Post-Conviction and was denied on May 5, 2016. He appealed and it was remanded and the undersigned entered an order on August 10, 2016. This order was affirmed by mandated issued in PC-2016-457. Defendant filed a motion to reopen on March 23, 2017 and the undersigned denied all motions on July 10, 2017 as stated hereinabove. There is nothing that the undersigned can rule upon and Petitioner has no further remedy to re-litigate the same issues.

Dkt. 12-16, at 2.

         Finally, the court stated that Petitioner “presented two Petitions for Post-Conviction relief which have been denied, ” that he “currently has nothing before the Undersigned, ” and that Petitioner's more recent motions were “invalid attempts to revive his earlier petitions which were presented for appeal to the [OCCA].” Id. at 2, ΒΆ 7. By order filed June 15, 2018, in No. MA-2018-392, the OCCA dismissed Petitioner's request for a writ of mandamus as moot, ...

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