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Jenkins v. Crow

United States District Court, N.D. Oklahoma

August 22, 2019

DAVID MICHAEL JENKINS, Petitioner,
v.
SCOTT CROW, [1] Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL CHIEF JUDGE

         Petitioner David Michael Jenkins, a state inmate appearing pro se, commenced this action on April 3, 2019, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1). In an opinion and order filed April 8, 2019 (Doc. 3), the Court found that the habeas petition is subject to being dismissed as time-barred under 28 U.S.C. § 2244(d)(1)'s one-year statute of limitations and provided Petitioner 30 days to show cause in writing why the petition should not be dismissed. Petitioner filed a timely response (Doc. 4) on April 29, 2019. For the reasons stated in this Court's prior opinion and order, and for the reasons that follow, the Court finds the habeas petition shall be dismissed with prejudice as time-barred.

         I.

         Petitioner seeks to challenge the judgment and sentence entered against him in the District Court of Tulsa County, No. CF-2008-6269. Doc. 1, at 1. In that case, a jury convicted Petitioner of first-degree murder, and the trial court imposed a life sentence. Id. at 1, 25-26. Represented by counsel, Petitioner filed a direct appeal claiming (1) the trial court erroneously failed to give a lesser-included-offense instruction without obtaining Petitioner's waiver of the instruction, (2) trial counsel was ineffective for failing to request a lesser-included-offense instruction, and (3) the trial court erroneously instructed the jury that a witness gave a prior inconsistent statement. Doc. 1, at 2, 13, 26. In an unpublished opinion filed August 3, 2011, in No. F-2010-631, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's conviction and sentence. Id. at 2, 26.

         Over four years later, on October 19, 2015, Petitioner filed a pro se application for postconviction relief in state district court, claiming he was denied his Sixth Amendment right to the effective assistance of trial counsel because counsel advised him to reject a plea offer and present a self-defense theory at trial. Doc. 1, at 3, 22, 26. The state district court denied Petitioner's application on March 15, 2018, finding the Sixth Amendment claim was procedurally barred because Petitioner had previously raised an ineffective-assistance-of-trial-counsel claim on direct appeal. Id. at 3, 25-28.

         Petitioner, proceeding pro se, filed a timely postconviction appeal. Doc. 1, at 29. He argued the state district court erred in applying a procedural bar because (1) the Sixth Amendment claim he raised in his postconviction application relied on Lafler v. Cooper, 566 U.S. 156 (2012), and (2) because Lafler was decided after his direct appeal, it constituted an intervening change in the law that excused his failure to raise the Sixth Amendment claim on direct appeal. Id. at 30-31. In an unpublished order filed October 12, 2018, in No. PC-2018-378, the OCCA rejected Petitioner's argument and affirmed the denial of postconviction relief. Id. at 4, 29-34.

         Nearly six months later, on April 3, 2019, Petitioner filed the instant federal habeas petition. Doc. 1, at 1. He seeks federal habeas relief on two grounds: (1) trial counsel was ineffective for advising him to reject a plea offer and proceed to trial, resulting in a harsher sentence, and (2) appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness in this respect. Doc. 1, at 5, 12. Petitioner also appears to request an evidentiary hearing on his claims. Id. at 24.

         II.

         The Antiterrorism and Effective Death Penalty Act (AEDPA), imposes a one-year statute of limitations for state prisoner seeking federal habeas relief through a § 2254 petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The one-year limitation period commences on the latest of the following four dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Regardless of when the one-year limitation period commences, that 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). However, to obtain the benefit of statutory tolling, the state prisoner must file the application for state postconviction relief or other collateral review (1) in accordance with applicable state laws and procedural rules, Artuz v. Bennett, 531 ...


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