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Colbert v. Crow

United States District Court, N.D. Oklahoma

September 27, 2019

JAMES DARREN COLBERT, Petitioner,
v.
SCOTT CROW, [1] Respondent.

          OPINION AND ORDER

          CLA1RE V. EAGAN CJ UNITED STATES DISTRICT JUDGE

         Petitioner James Darren Colbert, a state inmate appearing pro se, commenced this action on February 28, 2019, by filing a 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 1). In an opinion and order (Dkt. # 4) filed April 11, 2019, the Court found that the habeas petition is subject to being dismissed as time-barred by 28 U.S.C. § 2244(d)’s one-year statute of limitations and directed petitioner to show cause why the petition should not be dismissed. Petitioner timely filed a written response (Dkt. # 7) on May 13, 2019. For the reasons stated in this Court’s prior opinion and order, and for the reasons that follow, the Court finds that the petition shall be dismissed with prejudice as time-barred.

         I.

         Petitioner challenges the constitutional validity of the judgment and sentence entered against him in the District Court of Osage County, Case No. CF-2012-291. Dkt. # 1, at 1. In that case, a jury convicted petitioner of four felony offenses: (1) trafficking in illegal drugs, (2) possessing a firearm during the commission of a felony, (3) possessing a firearm after former conviction of a felony, and (4) unlawfully using a police radio, all after former conviction of two or more felonies; and two misdemeanor offenses: (1) possessing marijuana, and (2) possessing drug paraphernalia. Dkt. # 1, at 1, 26. The trial court imposed a 50-year prison term for the drug trafficking conviction, imposed shorter prison terms for each remaining conviction, and ordered all terms to be served concurrently. Id. at 26. Petitioner filed a timely direct appeal. Id. at 2, 27. In an unpublished opinion filed February 4, 2015, in Case No. F-2013-1106, the Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions and sentences. Id. at 27. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. Id. at 3.

         Petitioner sought post-conviction relief on three occasions. On February 23, 2016, petitioner filed an application for post-conviction relief in state district court. Dkt. # 1, at 3. The state district court denied that application on March 21, 2016, and petitioner did not appeal. Id. at 3, 27. Petitioner filed a second application for post-conviction relief in state district court on May 9, 2016. Id. at 4. In the second application, petitioner sought leave to file an out of time post-conviction appeal challenging the denial of his first application for post-conviction relief. Id. The state district court denied petitioner’s second application on July 12, 2016, and petitioner did not appeal. Id. at 4, 27. On December 16, 2016, petitioner filed a third application for post-conviction relief in state district court. Dkt. # 1, at 4. The state district court denied petitioner’s application on February 2, 2018, petitioner timely appealed, and the OCCA affirmed the denial of petitioner’s third application for post-conviction relief on April 10, 2018. Id. at 5, 26-28.

         Petitioner filed the instant federal habeas petition on February 28, 2019. Dkt. # 1, at 1. He raises four claims: (1) appellate counsel was ineffective, (2) the trial court lacked subject-matter and personal jurisdiction, (3) the search warrant was not supported by probable cause, and (4) the State did not file an amended information. Dkt. # 1, at 5-10, 20-25.

         II.

         The Antiterrorism and Effective Death Penalty Act (AEDPA), imposes a one-year statute of limitations for any 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). The one-year limitation 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 post-conviction relief or other collateral review (1) in accordance with applicable state laws and procedural rules, Artuz v. Bennett, 531 U.S. 4, 8 (2000), and (2) within the applicable one-year limitation period, Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

         Because the AEDPA’s statute of limitations is not jurisdictional, federal courts have discretion to toll the one-year period for equitable reasons. Holland v. Florida, 560 U.S. 631, 645 (2010). To obtain equitable tolling, a habeas petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing” of his federal habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner bears a “strong burden” to “show specific facts” establishing that equitable tolling is warranted. Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)). While equitable tolling is ...


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