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Lambert v. Whitten

United States District Court, W.D. Oklahoma

September 30, 2019

RICK WHITTEN, Warden, Respondent.[1]


          CHARLES B. GOODWIN, United States District Judge.

         Now before the Court is Petitioner’s Motion for Reconsideration En Banc Pursuant to Rule 60(b) (Doc. No. 9). On June 24, 2019, this Court issued its Opinion and Order (Doc. No. 7) sua sponte dismissing Plaintiff’s Petition for Writ of Habeas Corpus (“Petition, ” Doc. No. 1) as untimely.


         The procedural history of Petitioner’s state-court convictions, appeals, and applications for postconviction relief is set forth in the Court’s Opinion and Order and will not be repeated here.[2] The Court determined that the Petition, filed on August 6, 2018, was untimely pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), as even allowing for statutory tolling it had been filed more than one year after Petitioner’s conviction became final and he had made no showing of entitlement to equitable tolling or of actual innocence. See Op. & Order at 4-6.

         Petitioner filed his Motion for Reconsideration on July 8, 2019, asserting that the Court erred in calculating the timeliness of his Petition. See Pet’r’s Mot. at 2. Petitioner argues the one-year statute of limitation should be calculated pursuant to 28 U.S.C. § 2244(d)(1)(D). See id. Petitioner states the Petition was based upon the State of Oklahoma’s miscalculation of his future dangerousness and that the factual predicate of this claim was “developed” “after trial, upon assessment made by the parole investigator in 2014 and 2017.”[3] Id. at 1-2; see also Pet. at 7. Petitioner contends that he “immediate[ly]” filed “an application for post-conviction relief” raising this predicate fact in October 2017. Pet’r’s Mot. at 2.

         Standard of Decision

         The Federal Rules of Civil Procedure do not recognize a motion to reconsider. Computerized Thermal Imaging, Inc., v. Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002). Federal Rule of Civil Procedure 60(b) provides, however, that a court may relieve a party, upon motion, from a final judgment for mistake, inadvertence, surprise, excusable neglect, fraud, or “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (3), (6). “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)). “[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Id. (citation omitted).

         Generally, a Rule 60(b) motion filed in a habeas proceeding is treated as “a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). If the motion challenges “only the federal habeas court’s ruling on procedural issues [it] should be treated as a true 60(b) motion rather than a successive petition.” Id. at 1216. Here, Petitioner challenges a procedural determination and, thus, the Motion is treated as a true Rule 60(b) motion. See id. (stating that a Rule 60(b) motion “asserting that the federal district court incorrectly dismissed a petition . . . because of the statute of limitations constitutes a true 60(b) motion”).


         Liberally construing the Motion, Petitioner asserts that the Court has misapprehended the facts upon which the Petition is based and, as a result, mistakenly calculated the one-year statute of limitations from the date on which his conviction became final pursuant to 28 U.S.C. 2244(d)(1)(A). See Fed. R. Civ. P. 60(b)(1) (allowing relief based on “mistake, inadvertence, surprise, or excusable neglect”). Petitioner argues the Court should have calculated the statute of limitations from “‘the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.’” Pet’r’s Mot. at 2 (quoting 28 U.S.C. § 2244(d)(1)(D)). Specifically, Petitioner contends that the 2014 Pardon and Parole Board’s investigation discussed in the Petition constitutes new evidence of the State of Oklahoma’s miscalculation of his future dangerousness and, therefore, the statute of limitations period is most appropriately calculated pursuant to § 2244(d)(1)(D). See Id . at 1-2. Petitioner points to the assessed level of risk to the community attributed to him in this investigation.[4] See id.; see also Pet. at 6.

         The Petition states that during his incarceration Petitioner completed “SAMSHA Anger Management and Victim Impact” programs and is currently enrolled in “the GED program and Therapeutic Living Program” and that “[u]pon completion of these programs and development, Petitioner has been assessed by the Pardon and Parole Board investigation in 2014 as MODERATE RISK for return to the community.”[5] Pet. at 6. Petitioner argues this new level of assessed risk constitutes “evidence of material facts, not previously presented and heard, that requires modification of the sentence in the interest of justice.” Pet. at 6; see also Id . at 7; Okla. Stat. tit. 22, § 1080(d).[6]

         The Court concludes that the referenced investigation and risk assessment fail to speak to facts present at the time of Petitioner’s convictions indicating a miscalculation by the trial court. Instead, the 2014 investigation and risk assessment establish only that Petitioner completed various programs during his incarceration and that the completion of those programs resulted in the Pardon and Parole Board assigning him a level of moderate risk for return to the community. Pet. at 6. Petitioner's implication that good behavior and completion of beneficial programs over the course of 23 years of incarceration should trigger the statute of limitations to begin to run on the unspecified date of a 2014 Pardon and Parole Board investigation is without merit. Petitioner sets forth no legal basis for such a finding in his Petition or in his Motion. Further, “the undersigned is unaware of any legal authority permitting a court to essentially usurp one role of a state’s pardon and parole board by granting a petitioner a new statute of limitations based on his or her good behavior while incarcerated.” Lowery v. Bryant, CIV-18-413-F, 2018 WL 3978380, at *2 (W.D. Okla. July 9, 2018) (R. & R.), adopted, 2018 WL 3978370 (W.D. Okla. Aug. 20, 2018), certificate of appealability denied, 760 Fed.App’x 617 (10th Cir. 2019), and petition for cert. filed, No. 18-9524 (U.S. June 3, 2019). Therefore, Petitioner has not shown that his limitations period was triggered by newly discovered evidence of predicate facts invoking calculation of the statute of limitations pursuant to 28 U.S.C. § 2244(d)(1)(D).

         The Court also finds that even if it were to conclude that the 2014 assessment demonstrated a newly discovered predicate fact to support Petitioner’s claim, the Petition would remain untimely. Petitioner raised this issue for the first time in his October 2017 application for postconviction relief, more than one year after any 2014 event. Pet. at 7. Statutory tolling would not extend the one-year limitations period calculated from the 2014 assessment. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006) (“Only state petitions for post-conviction relief filed within the one year allowed by AEDPA will toll the statute of limitations.”). And Petitioner has presented no actual-innocence argument or facts tending to “show both extraordinary circumstances preventing timeliness and diligent pursuit of his ...

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