United States District Court, N.D. Oklahoma
MARCUS E. LOLAR, Petitioner,
SCOTT CROW, Respondent.
OPINION AND ORDER
TERENCE C. KERN United States District Judge.
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.
State court proceedings
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.
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2015) (unpublished), at 1. In an unpublished summary opinion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.
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. 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.
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.
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.” 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. 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.
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
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.
Federal habeas proceedings
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.
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
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. §
2244(d)(1)'s one-year statute of limitations. Dkts. 11,
12. Following a thorough review of the state-court ...