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Childers v. Crow

United States District Court, N.D. Oklahoma

January 6, 2020

JOHN WILLIAM CHILDERS, Petitioner,
v.
SCOTT CROW, Director, [1] Respondent.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE.

         Before the Court is John William Childers' 28 U.S.C. § 2254 habeas corpus petition (Dkt. 1). Childers challenges his convictions for failing to update his address as a sex offender and living within 2000 feet of a school, CF-2007-341, CF-2007-359. For the reasons below, the Court will deny the petition as untimely.

         I. Background

         Childers pled guilty to the above crimes on September 8, 2009. Dkt. 7-1 at 1. The state court sentenced him to life imprisonment on each charge. Id. He attempted to withdraw the plea after sentencing, but the Oklahoma Court of Criminal Appeals (OCCA) denied certiorari review. Id. Thereafter, he began filing various motions for post-conviction relief. The following timeline reflects the relevant state court activity between 2010 and 2017:

September 23, 2010: The OCCA denies certiorari review. Dkt. 7-1.
December 23, 2010: Childers does not appeal, the 90-day period to seek certiorari review with the United States Supreme Court expires, and the Judgment becomes final. See United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003).
- 358 days pass -
December 16, 2011: Childers files a state application for post-conviction relief, which tolls the statute of limitations. Dkt. 7-2; see also 28 U.S.C. § 2244(d)(2). Childers supplemented the application with a petition for mandamus relief on April 18, 2013, urging the state court to rule. Dkt. 7-3.
June 17, 2013: The state court denies the application for post-conviction relief. Dkt. 7-4.
July 17, 2013: Childers does not appeal, [2] and the 30-day period for seeking review with the OCCA expires. See Gibson v. Klinger, 232 F.3d 799, 802 (10th Cir. 2000).
July 18, 2013: “The next day statutory tolling ceased, and the available time for filing a federal habeas petition [i.e., seven days][3] resumed.” Trimble v. Hansen, 764 Fed. App'x 721, 724 (10th Cir.), cert. denied, 140 S.Ct. 283 (2019).
- 11 days pass, during which the one-year period expires -
July 29, 2013: Childers files another application for post-conviction relief. ...

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