United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
Raphel Unteeke Dennis, a state prisoner, filed this action
pursuant to 28 U.S.C. § 2254 seeking habeas relief.
See Pet. (Doc. No. 1). The matter was referred to
Magistrate Judge Bernard M. Jones for initial proceedings in
accordance with 28 U.S.C. § 636(b)(1)(B) and (C). On
June 10, 2019, Judge Jones ordered Petitioner to show cause
why the Petition should not be dismissed as untimely.
See Doc. No. 8. Petitioner responded on June 20,
2019. See Doc. No. 11. Judge Jones then issued a
Report and Recommendation (“R. & R., ” Doc.
No. 12) recommending that the Petition be summarily dismissed
under Rule 4 of the Rules Governing § 2254 Cases in the
U.S. District Courts.
has filed a timely written Objection (Doc. No. 13). Thus, the
Court must make a de novo determination of the portions of
the R. & R. to which a specific objection has been made,
and the Court may accept, modify, or reject the recommended
decision in whole or in part. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3).
novo review of the record, the Court concurs with Judge
Jones' suggested disposition of this matter. The Petition
is subject to the one-year statute of limitations established
by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1). Judge
Jones reviewed the timeliness of the Petition under
subsection § 2244(d)(1)(A) and found that under that
statutory provision the Petition was untimely filed and,
further, that neither statutory nor equitable tolling
applied. See R. & R. at 3-5. Petitioner's
Objection does not object to any of these findings or assert
an allegation of actual innocence.
Petitioner's Objection, liberally construed, argues that
the timeliness of his Petition should be measured pursuant to
28 U.S.C. § 2244(d)(1)(D) and that, in conjunction with
the time allowed by statutory tolling, his pleading was
timely filed. See Pet'r's Obj. at 1-7. The
Court has carefully considered this argument but rejects it
AEDPA, “[a] 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). “The limitations period
generally runs from the date on which the state judgment
became final after direct appeal, see [28 U.S.C.]
§ 2244(d)(1)(A), but is tolled during the time state
post-conviction review is pending, see Id. §
2244(d)(2).” Preston v. Gibson, 234 F.3d 1118,
1120 (10th Cir. 2000). In contrast to § 2244(d)(1)(A),
§ 2244(d)(1)(D) prescribes that AEDPA's one-year
limitations period shall run from “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)(D).
essentially argues that the state trial court issued two
rulings-one before and one after his conviction in June
2015-and that these rulings (aspects of which are alleged to
be fraudulent) constitute “newly discovered
evidence” whose issuance commenced his one-year
limitations period under § 2244(d)(1)(D). See
Pet'r's Obj. at 3-7; id. Exs. 1, 2 (Doc.
Nos. 13-1 (state-court order of June 11, 2015), 13-2
(state-court order of November 24, 2015)). Petitioner
contends that he should be found to have discovered
“the factual predicate” “of the claim or
claims presented” for habeas review when he received
the later ruling, i.e. shortly after November 24, 2015. 28
U.S.C. § 2244(d)(1)(D).
state-court rulings highlighted by Petitioner, both of which
address procedural docketing matters and the later of which
was issued after the entry of his pleas on June 15,
2015, do not reasonably appear to create the “factual
predicate” of his § 2254 claims, which properly
challenge only the validity of his state-court convictions
and sentence and not later proceedings. See
Pet'r's Obj. at 3-7; see also 28 U.S.C.
§ 2254(a); cf. Sellers v. Ward, 135 F.3d 1333,
1339 (10th Cir. 1998) (noting that a state court's
alleged errors during postconviction review are errors of
state law and not cognizable in federal habeas corpus).
Petitioner's vague allegation that these procedural
rulings support a claim of double jeopardy and demonstrate
the trial court's “bias and malicious character,
” and that somehow their issuance shows that he
“did not believe would receive a fair and impartial
trial process” and so entered certain pleas, does not
sufficiently link these rulings to any proper § 2254
habeas claims or establish that application of §
2244(d)(1)(D) is warranted. Pet'r's Obj. at 3-4, 6.
even accepting Petitioner's argument that the issuance of
the later ruling on November 24, 2015, should start his
one-year deadline under § 2244(d)(1)(D), his Petition
would still be untimely filed. See Pet'r's
Obj. at 6. Assuming Petitioner's one-year AEDPA deadline
began to run on November 28, 2015, see Id.
(“Petitioner was put on notice soon after November 25,
2015 . . . .”); id. Ex. 2, at 1; cf.
Fed. R. Civ. P. 6(d), that period ran for 359 days before
Petitioner filed an application for postconviction review on
November 21, 2016, thereby beginning statutory tolling. Pet.
at 3; see 28 U.S.C. § 2244(d)(2). The OCCA
disposed of the appeal on that application on May 18, 2018,
thereby restarting Petitioner's AEDPA deadline with 6
days left to file. Pet. at 6; see Lawrence v.
Florida, 549 U.S. 327, 332 (2007) (explaining that the
one-year AEDPA period is not tolled during by the filing of a
motion for certiorari in the U.S. Supreme Court after the
state courts' postconviction review is complete).
Petitioner's pleading was not filed until 342 days after
that restart date, on April 25, 2019. See Pet. at
15. The Petition therefore would be untimely and subject to
dismissal on that basis.
the Report and Recommendation (Doc. No. 12) is ADOPTED in its
entirety. Petitioner's pending motion (Doc. No. 10) is
denied as moot, and this action is DISMISSED as untimely
to Rule 11(a) of the Rules Governing Section 2254 Cases in
the United States District Courts, the Court must issue or
deny a certificate of appealability (“COA”) when
it enters a final order adverse to a petitioner. A COA may
issue only upon “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Upon
consideration, the Court finds the requisite showing is not
met in this case. Therefore, a COA is denied.
Clerk of Court is directed to serve copies of the Petition
and this Order on Respondent and on the Attorney General of
the State of Oklahoma through electronic mail sent to