United States District Court, N.D. Oklahoma
MARCUS E. LOLAR, Petitioner,
SCOTT CROW,  Respondent.
OPINION AND ORDER
Terence C. Kern United States District Judge.
Marcus Lolar, a state inmate appearing pro se,  commenced this
action on July 30, 2018, by filing a 28 U.S.C. § 2254
petition for writ of habeas corpus (Dkt. 1).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.
Jury trial and direct appeal
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. 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.
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2015) (unpublished), at 1. In an unpublished summary opinion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.
State post-conviction proceedings
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.
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
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.
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.
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.
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
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.
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.
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. 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.
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].”
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.
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.
last visited August 4, 2019. Petitioner asked the court to
deem PCRA II “confessed” by the State and grant
Petitioner the relief requested therein.
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.
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.
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.
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
September 29, 2016, and April 7, 2017, Petitioner filed five
motions and a petition for writ of mandamus in state district
court. 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.
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.
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.
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. 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.
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
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
Dkt. 12-16, at 1, ¶ 3 (boldface type and underlining in
original). In paragraph five of the response, the court
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.
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, ¶ 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,