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Lolar v. Crow

United States District Court, N.D. Oklahoma

October 1, 2019

MARCUS E. LOLAR, Petitioner,
v.
SCOTT CROW, Respondent.

          OPINION AND ORDER

          TERENCE C. KERN United States District Judge.

         This is a habeas corpus action. By Opinion and Order (Dkt. 23) filed August 15, 2019, the Court dismissed Petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus as time-barred and denied a certificate of appealability. The Court entered a separate judgment (Dkt. 24) against Petitioner the same day. Petitioner filed a Fed.R.Civ.P. 60(b) motion for relief from judgment (Dkt. 25) on September 6, 2019, and a timely notice of appeal (Dkt. 26) on September 9, 2019. See also Dkt. 28 (assigning appellate No. 19-5084). Respondent filed a response (Dkt. 29) in opposition to the motion for relief from judgment on September 23, 2019. For the reasons that follow, the Court denies Petitioner's Rule 60(b) motion.

         I. Background

         A. State court proceedings

         Petitioner is currently incarcerated pursuant to the judgment and sentence entered against him in the District Court of Osage County, No. CF-2012-360. Following a two-day trial in January 2014, the jury found Petitioner guilty of committing first degree robbery (Count 1) and second degree burglary (Count 2). Dkt. 1, at 1-2; Dkt. 12-27, at 12-14. Evidence presented at trial established that on September 20, 2012, Petitioner broke into the unoccupied home of Earnest Shannon McGuire, in Pawhuska, Oklahoma, possibly through a back window. See Dkt. 22-1 (Trial Transcript), Lolar v. Allbaugh, N.D. Okla. No. 16-CV-692-GKF-JFJ, at 96-107, 128-35, 142-46, 200-207, 220-28. When McGuire returned home, Petitioner physically assaulted McGuire, stabbed him in the neck with a steak knife, causing non-fatal wounds, demanded money, and took approximately $300 from him. Id. The jury affixed punishment at 16 years' imprisonment for the robbery and two years' imprisonment for the burglary. Dkt. 12-27, at 14. In March 2014, the trial court sentenced Petitioner accordingly and ordered the sentences to be served concurrently. Id. at 15.

         Represented by counsel, Petitioner filed a direct appeal, claiming (1) prosecutorial misconduct deprived him of a fair trial and (2) trial counsel's inadequate performance deprived him of his right to the effective assistance of counsel. Dkt. 12-1, Lolar v. State, No. F-2014-257 (Okla. Crim. App. 2015) (unpublished), at 1. In an unpublished summary opinion filed April 21, 2015, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's convictions and sentences. Id. at 1-3.

         Petitioner subsequently filed two applications for postconviction relief-one on June 22, 2015 (PCRA I), and one on April 22, 2016 (PCRA II). Dkt. 23, at 3-13.[1] In PCRA I, Petitioner claimed he was deprived of “due process” and his rights under Oklahoma's Postconviction DNA Act, Okla. Stat. tit. 22, §§ 1373.2, 1373.4. Dkt. 12-2, at 2. Citing Brady v. Maryland, 373 U.S. 83 (1963), he alleged exculpatory evidence was withheld because the State, his trial counsel, and his appellate counsel failed to request DNA testing on fingerprints from a window of the victim's house and blood and fingerprints from the knife used to stab the victim. Id. at 2, 16. Petitioner requested DNA testing of this evidence and attached a copy of a legislative draft of Oklahoma's Postconviction DNA Act. Dkt. 12-2, at 4-16. In PCRA II, Petitioner identified two propositions of error. Dkt. 12-5, at 2, 5. First, citing Brady, the Fourth Amendment, and the Fourteenth Amendment, Petitioner alleged a due-process violation stemming from the State's failures (1) to “process” exculpatory DNA evidence and (2) to prove every element of the crimes charged. Id. at 2, 10. As to the second failure, Petitioner cited Sullivan v. Louisiana, 508 U.S. 275 (1993), and alleged the State “didn't prove the DNA fingerprints on the window.” Id. at 10. Second, citing Strickland v. Washington, 466 U.S. 668 (1984), Petitioner alleged a violation of his Sixth Amendment right to the effective assistance of appellate counsel and identified four issues appellate counsel omitted from his direct appeal brief. Id. at 5, 10-14.

         The state district court entered three orders and filed one response to a writ of mandamus issued by the OCCA relating to PCRA I and PCRA II. First, on May 5, 2016, the state district court issued a one-page order denying relief as to PCRA I. Dkt. 12-7. Petitioner timely perfected a postconviction appeal from that order and submitted an appellate brief with arguments focused on the denial of PCRA I and the request for DNA testing. Dkt. 12-8; Dkt. 12-9; Dkt. 12-27, at 24. By order filed July 12, 2016, in No. PC-2016-0457, the OCCA remanded the case to the state district court “for entry of an order setting forth findings of fact and conclusions of law addressing Petitioner's application for post-conviction relief requesting DNA testing pursuant to the Post-Conviction DNA Act, 22 O.S.Supp. 2013, §§ 1373-1373.7.” Dkt. 12-10, at 1-2.

         Second, on August 10, 2016, pursuant to the OCCA's remand order, the state district court entered an order denying relief as to PCRA I and PCRA II. Dkt. 12-11. In the order, the court (1) described the propositions of error Petitioner identified in PCRA I and PCRA II, (2) noted that both applications referenced “due process, ” Brady, and ineffective assistance of appellate counsel, and (3) stated that Petitioner's “primary complaint is that the State did not provide him with exculpatory evidence.” Dkt. 12-11, at 3-5, 9-10. Regarding Petitioner's requests for DNA testing, the court found, based on its review of the trial record, that “there were no prints on the bloody steak knife” and that the window had not been dusted for fingerprints. Id. at 5-9. The court reasoned, in part, that ordering DNA testing would be “an exercise in futility” because “no further evidence exists.” Id. at 10. In addition, the court concluded, based on its review of the trial record, that the evidence “overwhelmingly” supported the jury's guilty verdicts. Id. The court denied Petitioner's applications for postconviction relief, his motions for an evidentiary hearing, and his “motion for disposition and favorable judgement.”[2] Id. at 11. On August 19, 2016, Petitioner filed a “motion in response in objection” to the state district court's August 10, 2016 order, arguing, in relevant part, that the state district court erred in “attempting to lump together” Petitioner's separate applications for postconviction relief under the Postconviction DNA Act (PCRA I) and the Postconviction Procedure Act (PCRA II). Dkt. 12-2, at 1-2. By unpublished order filed August 31, 2016, in Nos. PC-2016-0457 and MA-2016-0728, the OCCA affirmed the state district court's August 10, 2016 order and denied his petition for writ of mandamus.[3] Dkt. 12-13, at 1-4. The state district court received the mandate from the OCCA in Petitioner's postconviction appeal on September 2, 2016. Dkt. 12-27, at 26.

         Third, on July 10, 2017, the state district court denied five motions and a petition for writ of mandamus, all of which Petitioner filed in state district court between September 29, 2016, and April 7, 2017. Dkt. 12-23. The first four motions and the mandamus petition sought relief relating to PCRA I and Petitioner's requests for DNA testing, whereas Petitioner's April 7, 2017 motion to dismiss reasserted Petitioner's argument that the State failed to respond to PCRA II. See Dkts. 12-17 through 12-22. With respect to the motion to dismiss, the court stated (1) that it had denied both PCRA I and PCRA II in its May 5, 2016 order and (2) that Petitioner had appealed the denial of both PCRA I and PCRA II through his postconviction appeal. Dkt. 12-23, at 1-2. Petitioner did not seek appellate review of the July 10, 2017 order. Dkt. 12-27, at 28; see also Dkt. 23, at 10 n.11.

         Fourth and finally, on June 4, 2018, the state district court filed a response to an order issued by the OCCA in Petitioner's fourth mandamus action. See Dkt. 12-16 (copy of response filed in state district court May 29, 2018). Petitioner commenced the fourth mandamus action on April 18, 2018, by filing a “motion to compel Osage County District Court to Answer Petitioner's Post-Conviction Application Stamped File dated 4/22/16.” Dkt. 12-14. In the motion, Petitioner alleged PCRA II was still pending and documented his previous efforts to obtain a ruling. Id. at 2-5. By order filed May 15, 2018, the OCCA directed the state district court (1) to determine whether Petitioner filed an application for postconviction relief on April 22, 2016, (2) if so, to advise the OCCA whether the court had already disposed of that application, and (3) to rule on the application within 30 days if the application was pending. Dkt. 12-15, at 1. In its response, the state district court made three separate statements indicating that it viewed its July 10, 2017 order as “the dispositive order as to all pending motions, petitions and pleadings concerning [Petitioner], ” and twice expressed that no matters were pending in state district court as to Petitioner's requests for postconviction relief. Dkt. 12-16, at 1-2. By order filed June 15, 2018, in No. MA-2018-392, the OCCA dismissed Petitioner's request for a writ of mandamus as moot, stating “the District Court fully adjudicated Petitioner's complaints regarding the pending matters in this case.” Dkt. 12-24, at 2.

         B. Federal habeas proceedings

         Petitioner filed two federal habeas petitions in this court seeking relief under 28 U.S.C. § 2254. First, on November 16, 2016, Petitioner filed a § 2254 petition, seeking relief on one claim: “DNA testing.” Dkt. 29, Lolar v. Allbaugh, N.D. Okla. No. 16-CV-0692-GKF-JFJ, at 1. In support of that claim, Petitioner alleged that the State and his trial counsel “failed to test fingerprints on window Petitioner was accused of ‘Breaking Into, ” and “failed to test DNA and fingerprints on knife Petitioner was accused of ‘Stabbing victim in the neck' with.” Id. at 1-2. Nearly one year after the matter was fully briefed, Petitioner requested voluntarily dismissal of the § 2254 petition, alleging his claim lacked merit and vaguely asserting that he needed “to exhaust his state remedies in his post-conviction.” Id. at 2. Based on the record then before the Court, and Respondent's response to the petition, the Court found that PCRA II appeared to be “pending in state district court as of July 19, 2017, ” and that Petitioner's stated need to exhaust state remedies likely referred to exhaustion of the claims asserted in PCRA II. Id. at 3-4. The Court granted Petitioner's motions and dismissed his first § 2254 petition without prejudice to refiling. Id. at 4. In doing so, the Court also noted that Petitioner had already filed a second § 2254 petition in the instant case. Id. at 4 n.1.

         Second, on July 30, 2018, Petitioner commenced the instant habeas action by filing a § 2254 petition asserting four claims: (1) a due-process claim under Brady v. Maryland, 373 U.S. 83 (1963), and McCormick v. Parker, 821 F.3d 1240 (10th Cir. 2016), based on the State's failure to “process exculpatory evidence, ” Dkt. 1, at 5; (2) an ineffective-assistance-of-appellate-counsel claim, id. at 7; (3) a due-process claim under Sullivan v. Louisiana, 508 U.S. 275 (1993), based on the State's failure to prove every essential element of the crimes charged beyond a reasonable doubt, id. at 8; and (4) a Fourth Amendment claim alleging his arrest was unreasonable, id. at 10. Respondent moved to dismiss the petition as time-barred under 28 U.S.C. ยง 2244(d)(1)'s one-year statute of limitations. Dkts. 11, 12. Following a thorough review of the state-court ...


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