Opinion
CIV-22-248-C
05-10-2022
CHARLES ENOCH, Petitioner, v. SCOTT CROW, DIRECTOR, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Charles Enoch, a pro se state prisoner, filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus in this Court challenging his Oklahoma County convictions. Doc. 1. United States District Judge Robin J. Cauthron referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. After a careful examination of the petition, as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Rule 4), the undersigned recommends dismissal of this habeas petition as time-barred. See 28 U.S.C. § 2244(d)(1).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Procedural history.
Petitioner pleaded guilty in 1986 to two counts of concealing stolen property in the District Court of Oklahoma County, in Case No. CF-1986-3538. Doc. 1, at 1. On August 6, 1986, the court imposed a three-year deferred sentence on each count. Doc. 2, at 4 (Petitioner's Brief in Support of Writ of Habeas Corpus). On October 22, 1987, the court accelerated Petitioner's deferred sentence to a two-year suspended sentence. Id. On August 28, 1992, the court revoked Petitioner's suspended sentence, and Petitioner began serving his sentence in the custody of the Department of Corrections. Id. Petitioner's sentence was discharged on May 12, 1994. Id.
Petitioner also states he received a two-year deferred sentence. Doc. 1, at 1. Whether his original sentence was two or three years does not affect this recommendation.
Petitioner did not file a direct appeal. Doc. 1, at 2. On September 23, 2020, Petitioner applied for post-conviction relief in the District Court of Oklahoma County. Id. at 3. The court denied the application on November 9, 2020. Id. Ex. 1. The Oklahoma Court of Criminal Appeals affirmed the district court's decision on April 19, 2021. Id. Ex. 2.
Petitioner filed the instant § 2254 habeas petition challenging these same convictions and bringing three claims for relief. Doc. 1; see also Doc. 2. Petitioner claims in Ground One that his “duplicate convictions [and] sentences for concealing stolen property violated double jeopardy” because “both rely on same evidence [and] where one does not require proof the other does not.” Doc. 1, at 5. In Ground Two, Petitioner contends he received ineffective assistance of counsel because his “counsel failed to inform [him] of double jeopardy defense rendering plea unknowing [and] involuntary.” Id. at 6. And, in Ground Three, Petitioner contends he “is actually [and] factually innocent of the charge of concealing stolen property in” the second count. Id. at 8.
II. Screening.
Rule 4 requires this Court to promptly review habeas petitions and promptly dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing 2254 Cases in the United States District Courts. And this Court must dismiss an action sua sponte if it determines that it lacks jurisdiction. See Fed.R.Civ.P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07 (2006).
This rule allows the court to sua sponte raise the timeliness of a petition for writ of habeas corpus if untimeliness is “clear from the face of the petition.” Kilgore v. Att'y Gen. of Colo., 519 F.3d 1084, 1085 (10th Cir. 2008); see also Day v. McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.”).
III. Discussion.
A. Petitioner's custody status is unclear.
“To obtain relief under § 2254 . . . ‘the applicant must be ‘in custody' under the challenged judgment.'” Smith v. Allbaugh, 770 Fed.Appx. 425, 426 (10th Cir. 2019) (quoting Anderson-Bey v. Zavaras, 641 F.3d 445, 453 (10th Cir. 2011)); see also Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 401 (2001) (“The first showing a § 2254 petitioner must make is that he is ‘in custody pursuant to the judgment of a State court.'” (quoting 28 U.S.C. § 2254(a))). “The custody requirement is jurisdictional.” Calhoun v. Att'y Gen. of Colo., 745 F.3d 1070, 1073 (10th Cir. 2014) (internal quotation marks omitted). And “[a] petitioner must satisfy the custody requirement at the time the habeas petition is filed.” Id.
When a petitioner “is no longer serving the sentences imposed” for the convictions, he “cannot bring a federal habeas petition directed solely at those convictions.” Id. One exception is that a petitioner may challenge an already-completed sentence when that sentence is part of a consecutive series. See Garlotte v. Fordice, 515 U.S. 39, 41 (1995) (holding that a petitioner incarcerated under a consecutive series “remains ‘in custody' under all of his sentences until all are served”). In such a case, a court must view “consecutive sentences in the aggregate” and allow a habeas petitioner to challenge an already-served sentence where its invalidation “would advance the date of his eligibility for release from present incarceration.” Id. at 47; see also id. at 41 (noting the completed sentence “perist[ed] to postpone Garlotte's eligibility for parole”).
In Triplet v. Franklin, 365 Fed.Appx. 86, 93 (10th Cir. 2010), the Tenth Circuit, applying Garlotte, held that the petitioner could challenge a conviction for which he had already completed his sentence because: (1) “he was still serving the eight years remaining on the sentences that were ordered to run concurrent” with his completed sentence; and (2) “he had yet to serve the two concurrent ten-year sentences . . . which were ordered to run consecutive” to the first set of concurrent sentences. The court reasoned that because the petitioner's sentence “was part of a consecutive series, he remained ‘in custody' on that sentence for purposes of federal habeas relief until all of the sentences in the consecutive series were served.” Id. at 94.
Petitioner acknowledges the sentence for the convictions he challenges ended on May 12, 1994. Doc. 2, at 4; see also Doc. 1, Ex. 5 (reflecting Petitioner's incarceration for the convictions ended on May 12, 1994). Petitioner attaches a document showing he began serving five ten-year sentences at the same time he began serving the two-year sentence he challenges here. Doc. 1, Ex. 5. Then, shortly before he completed serving time on his ten-year sentences in 1998, the document indicates he began serving a life sentence from a 1993 murder conviction. Id. Although the document is not dispositive-the terms of the judgments are not included-it is possible Petitioner's sentences are structured in a way that amounted to a “consecutive series” as contemplated by Triplet, meaning he would be considered “in custody” until he finished serving the last sentence in the series. Because it does not appear from the face of the petition and attached exhibits that Petitioner is no longer in custody on the convictions he attacks, the undersigned does not recommend dismissal on that basis.
B. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
28 U.S.C. § 2244(d)(1). The act provides four alternative starting dates for the limitations period:
The limitation period shall run from the latest of-
(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.Id. It also includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.Id. § 2244(d)(2). A petition filed outside the statute of limitations, accounting for statutory tolling, will be considered timely filed only “in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“AEDPA's one-year statute of limitations is subject to equitable tolling but only ‘in rare and exceptional circumstances.'”) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
1. The petition is untimely under § 2244(d).
Petitioner sets forth two possible events from which to calculate the statute of limitations-the date of the judgment and the date on which he allegedly learned of the factual predicate of his claims. The petition is untimely using either event. And he does not qualify for statutory tolling.
a. The petition is untimely under § 2244(d)(1).
Unless a petitioner shows otherwise, the limitations period generally runs from the date the judgment becomes “final” under § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). “[A] judgment becomes final when the defendant has exhausted all direct appeals in state court and the time to petition for a writ of certiorari from the United States Supreme Court has expired ....” Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 2012). To appeal from a conviction on a guilty plea, a defendant must first apply to withdraw the plea within ten days from the pronouncement of the judgment and sentence. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Tit. 22, Ch.18, App.; see also Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding petitioner's convictions on guilty pleas were final ten days after entry of each judgment and sentence under OCCA Rule 4.2(A) because petitioner had failed to appeal).
Petitioner attests he was sentenced on August 6, 1986, Doc. 1, at 1, which would ordinarily mean his conviction was final on August 16, 1986. See Fisher, 262 F.3d at 1142; Jones v. Patton, 619 Fed.Appx. 676, 678 (10th Cir. 2015) (“If a defendant does not timely move to withdraw a guilty plea or file a direct appeal, Oklahoma criminal convictions become final ten days after sentencing.”). But “[u]nder Oklahoma law, when a trial court accelerates a defendant's deferred sentence, the defendant can appeal his underlying plea at the same time he challenges the validity of the acceleration order.” Porter v. Allbaugh, No. CIV-15-1165-W, 2016 WL 11469342, at *2 (W.D. Okla. May 26, 2016) (internal quotation marks omitted), adopted by 2016 WL 3555035 (W.D. Okla. June 23, 2016). The trial court accelerated Petitioner's sentence on October 22, 1987. See Doc. 2, at 4 (noting the court accelerated Petitioner's sentence on October 22, 1987); Doc. 1, Ex. 6 (noting Petitioner was convicted on October 22, 1987). Using this later date, Petitioner's judgment became final on November 1, 1987. See Wilson v. Allbaugh, No. CIV-18-0383-G, 2019 WL 4459330, at *2 (W.D. Okla. Apr. 24, 2019) (“In an abundance of caution, the Court finds [the] date [on which the statute of limitations began to run] was July 9, 2010 - ten days after his June 29, 2010 accelerated sentencing (and in the absence of any appeal).”), adopted by 2019 WL 3347181 (W.D. Okla. July 25, 2019).
Under either date, Petitioner's “conviction became final before AEDPA took effect . . . [and] the one year limitation period for a federal habeas petition starts on AEDPA's effective date, April 24, 1996.” Fisher, 262 F.3d at 1142. “Thus, in order to be timely, [Petitioner] should have filed . . . his habeas petition[] prior to April 24, 1997.” Id. Because Petitioner did not file this action until over twenty-three years after that date, the Petition is untimely under § 2244(d)(1)(A).
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. 28 U.S.C. § 2244(d)(2); Habteselassie v. Novak, 209 F.3d 1208, 1210 (10th Cir. 2000). This provision only applies, though, to post-conviction applications filed within the statutory year to file for habeas relief. 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.”). Petitioner did not apply for post-conviction relief until twenty-three years after his statutory year had run. Doc. 1, at 3. He therefore is not entitled to statutory tolling under § 2244(d)(2) based on the date his judgment became final.
Finally, even liberally construed, Petitioner includes no allegations suggesting the Petition would be timely under 28 U.S.C. §§ 2244(d)(1)(B) or (C).
b. The petition is untimely under § 2244(d)(2)(D).
A petition can also be timely if it is filed within a year from “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)(D). Petitioner contends he “was unaware of the [double jeopardy] violation until 2019, when the district court clerk sent him, along with paperwork he'd requested, a copy of the information on CF-86-3538 which he had not been previously provided.” Doc. 2, at 4. Petitioner also asserts “[n]either the state or [Petitioner's] court-appointed counsel ever provided him a copy of [the information], thus he was unaware of said double jeopardy violation until the district court clerk sent me a copy in 12-11-2019 [and] it should be considered newly-discovered evidence.” Id. at 7.
Assuming December 11, 2019, is the appropriate date from which to calculate the statute of limitations under § 2244(d)(1)(D), the Petition is untimely because Petitioner filed this action more than two years later-on March 21, 2022. See Doc. 1, at 14 (declaration that the petition was placed in the prison mailing system on March 21, 2022); Fleming v. Evans, 481 F.3d 1249, 1255 n.2 (10th Cir. 2007) (“The petition is deemed ‘filed' when the petitioner gives it to prison authorities for mailing.”).
Because the Petition is untimely using the latest date suggested by Petitioner, the undersigned does not reach whether Petitioner could have discovered the factual predicate of his claims earlier through the exercise of due diligence. Given that thirty-three years elapsed between the date on which the information was placed in the court record, Doc. 1, Ex. 4, and the date on which Petitioner received the court file, it is likely that the actual reference date under § 2244(d)(1)(D) is much earlier. See, e.g., Mitchell v. Mullin, 388 Fed.Appx. 811, 813 (10th Cir. 2010) (“He could have discovered the state of the evidence against him at any time after his conviction with minimal effort, much less the due diligence the statute requires.”); Ousley v. Taylor, 2009 WL 5101774, at *3 (N.D. Okla. Dec. 17, 2009) (“Petitioner could have discovered through the exercise of due diligence that no motion had been filed in January 1998. Waiting until September 2008 to make inquiries does not constitute due diligence.”).
The Petition is also untimely after considering statutory tolling. Petitioner applied for post-conviction relief in the Oklahoma County District Court on September 23, 2020-287 days after he received the court file and 78 days before the expiration of the limitations period. At that point, the § 2244 limitations period was tolled. The state district court denied Petitioner's postconviction application, and the OCCA affirmed on April 19, 2021. Doc. 1, Exs. 1, 2. Once the OCCA affirmed, the § 2244 limitations period began to run again and expired 78 days later, on July 6, 2021. See Lawrence v. Florida, 549 U.S. 327, 332 (2007) (holding an application for post-conviction relief in state court “‘remains pending' ‘until the application has achieved final resolution through the State's postconviction procedures, '” that is, when the “State's highest court has issued its mandate or denied review”) (quoting Carey v. Saffold, 536 U.S. 214, 220 (2002)). Petitioner did not file his Petition until March 21, 2022-more than eight months after the expiration of the limitations period, adjusted for statutory tolling.
2. Equitable tolling does not apply.
Section 2244(d) “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). Generally, “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). Under this standard, a petitioner “‘bears a strong burden to show specific facts to support his claim of extraordinary circumstances and due diligence.'” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008)).
Petitioner's stated reason for the Petition's untimeliness is:
I am actually innocent of the charged offense. I have newly-discovered evidence coupled with constitutional errors & if not heard & ruled upon will result in the continuation of a miscarriage of justice.
Doc. 1, at 13. Liberally construing the Petition, the undersigned finds no allegation “that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649 (internal quotation marks omitted). Even if Petitioner alleged he had trouble obtaining the newly obtained evidence-records from the court file-he would not qualify for equitable tolling. See, e.g., Kenneth v. Martinez, 771 Fed.Appx. 862, 865 (10th Cir. 2019) (“[T]his court has repeatedly rejected the argument that difficulty in obtaining trial records constitutes ‘extraordinary circumstances' justifying equitable tolling.”). Petitioner is thus not entitled to equitable tolling of the statute of limitations.
The Court addresses Petitioner's actual innocence claim infra § III.B.3.
3. Petitioner does not qualify for the actual-innocence exception to the statute of limitations because he only asserts he is legally innocent of the crimes.
“[A] credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief, ” such as an otherwise-untimely petition. McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). “[A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown.” Id. at 387.
“[T]enable actual-innocence gateway pleas are rare.” Id. at 386. “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). And a “‘petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'” McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).
Petitioner's actual-innocence claim alleges legal insufficiency rather than factual innocence. He contends:
I was charged with concealing the exact items allegedly stolen from 2 different persons on 6/30/86. As this is impossible it makes count 2 a duplicate charge & it violates double jeopardy as per Blockburger v. United States, 284 U.S. 299 (1932). Oklahoma applies the Blockburger test for double jeopardy claims McElmurray v. State, 60 P.3d 4, 24 (Ok. Cr. App. 2002). Under Blockburger double jeopardy occurs when a person is prosecuted for more than 1 offense based on the same criminal conduct.
Doc. 2, at 10. Even if successful, a double jeopardy claim only establishes legal innocence, not factual innocence. See Steele v. Young, 11 F.3d 1518, 1522 n.8 (10th Cir. 1993) (“Steele would not show factual innocence by prevailing on the merits of his double jeopardy claim. Doing so would show only ‘legal innocence' of part of his conviction.”); Pease v. Raemisch, 2016 WL 8671071, at *5 (D. Colo. May 23, 2016) (“[T]he defaulted double jeopardy claim standing alone did not satisfy the fundamental miscarriage of justice exception because, if successful, it would have shown only legal innocence: ‘a double jeopardy claim that is not supplemented by a claim of factual innocence bars federal habeas review.'” (quoting Selsor v. Kaiser, 22 F.3d 1029, 1034-35 (10th Cir. 1994))).
Further, Petitioner's claim that the information shows that it was “impossible” for him to have committed Count Two does not establish his factual innocence. It is possible he concealed and withheld the named items from both Mr. Hoel (Count One) and Mr. Wann (Count Two). And the information aligns with that theory. Petitioner, therefore, did not timely file his petition as required under § 2244 of the AEDPA.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends dismissal with prejudice of this habeas petition because Petitioner's habeas petition is untimely.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before May 31, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.
ENTERED.