United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's petition for a
writ of habeas corpus filed pursuant to 28 U.S.C. §
2241. (Dkt. 1). Petitioner is a pro se prisoner in the
custody of the Oklahoma Department of Corrections (DOC) who
currently is incarcerated at Lexington Correctional Center in
Lexington, Oklahoma. He is challenging the execution of his
life sentence for First Degree Murder in Oklahoma County
District Court No. 72-1881.
alleges that on September 5, 1996, he completed serving his
Oklahoma life sentence when he was sentenced to three prison
terms by the State of Washington. (Dkt. 15-3). He further
contends he completed serving all of his Washington and
Oklahoma sentences when the Washington sentences expired on
March 7, 2007, and has been held illegally since then.
Petitioner also claims he has been subjected to double
jeopardy and that he is being denied due process
participated in the August 4, 1972, robbery of an Oklahoma
City grocery store, and the execution-style murders of the
store's clerk, the clerk's wife, and their
six-year-old son. (Dkt. 15 at 2). See also Breedlove v.
State, 525 P.2d 1254, 1255 (Okla. Crim. App. 1974). He
was convicted of First Degree Murder and Robbery with a
Dangerous Weapon, and was sentenced to death for each crime.
Id. In 1973, however, the Oklahoma Court of Criminal
Appeals (OCCA) commuted his two death sentences to
consecutive life sentences in line with Furman v.
Georgia, 408 U.S. 238 (1972). Id.
served his life sentence for Robbery with a Dangerous Weapon
until he was paroled on September 15, 1987, and rebilled to
the Oklahoma life sentence for First Degree Murder in No.
72-1881. (Dkt. 15-2 at 1). On June 9, 1992, he escaped from
prison and did not resume serving his Oklahoma sentence until
March 7, 2007. Id. at 2, 4.
after his escape from the DOC facility, Petitioner was in
Tacoma, Washington, being held and eventually charged with
another murder after he stabbed a man to death. (Dkt. 15 at
3). He pleaded guilty to Manslaughter in the First Degree,
Unlawful Imprisonment, and Assault in the Third Degree,
receiving sentences of 10 years, 5 years, and 5 years,
respectively, to resolve the pending murder charge. (Dkt.
15-3). He remained in the State of Washington, serving
Washington state sentences until October 15, 1998, when he
was sent back to Oklahoma, in accordance with an Interstate
Corrections Compact agreement, to continue serving his
Washington sentences in Oklahoma. (Dkt. 15-4).
served the Washington sentences in Oklahoma until March 7,
2007, when the State of Washington determined the sentences
had been completed. He then resumed serving his life sentence
for Murder in No. CRF-1972-1881. (Dkt. 15-2 at 1-2, 4).
According to Petitioner's Consolidated Record Card, he
has not completed serving his life sentence for the Oklahoma
murder, and he has a remaining balance of “life”
left to serve. (Dkt. 15-2 at 7).
has filed numerous, unsuccessful challenges to his
incarceration in the Oklahoma state courts, see Dkt.
15-5, and in the United States District Court for the Western
District of Oklahoma, see Breedlove v. Mullin, No.
CIV-04-826-F (W.D. Okla. Jan. 3, 2005) (Order Adopting Report
and Recommendation) (denying habeas petition as barred by the
statute of limitations). In its Order affirming the denial of
his sixth post-conviction application, the OCCA found
Petitioner “is serving a sentence of life imprisonment.
Petitioner's murder conviction and life sentence have not
been overturned in direct appeal or post-conviction
proceedings.” Breedlove v. Okla. Dep't of
Corr., No. PC-2015-766, slip op. at 1 (Okla. Crim. App.
Nov. 24, 2015) (Dkt. 2-29 at 1). Petitioner has not argued or
presented any evidence showing he has been granted a
reprieve, pardon, commutation, or parole.
alleges, among other things, that the petition was filed
beyond the one-year statute of limitations imposed by the
Antiterrorism and Effective Death Penalty Act of 1996,
codified at 28 U.S.C. § 2244(d). The applicable section
of the statute reads:
(1) 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. The
limitation period shall run from the latest of-- . . .
(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)(D). The one-year limitations
period also applies to § 2241 habeas corpus actions.
Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.
Court finds that the last date Petitioner could reasonably
assert as the factual predicate would be March 7, 2007, when
he completed serving his Washington state sentences. He then
had until March 8, 2008, to commence this habeas action. His
petition, however, was not filed until July 19, 2016 (Dkt. 1
at 9). Thus, the petition is barred by the statute of
Court further finds Petitioner has not shown “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 [this] court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). See also 28 U.S.C. § 2253(c).