Opinion
CIV-20-108-JD
12-16-2020
GREGORY ALLAN GEORGE, Petitioner, v. RICK WHITTEN, Warden, Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, a pro se Oklahoma prisoner, seeks habeas relief under 28 U.S.C. § 2254 from his conviction for lewd or indecent acts with a child under sixteen. See Doc. 23; Doc. 36, Ex. 1. United States District Judge Jodi W. Dishman referred the matter to the undersigned for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Docs. 4, 17. Respondent has moved to dismiss the petition as time-barred and filed a brief in support of the motion. Docs. 35-36. Petitioner has responded, Doc. 37, and the matter is at issue.
Citations to a court document are to its electronic case filing designation and pagination. Unless otherwise indicated, quotations are verbatim.
For the reasons discussed, the undersigned recommends the Court grant Respondent's motion to dismiss the untimely petition.
I. Procedural background.
An Oklahoma County jury, in Case No. CF-2013-8064, found Petitioner guilty of indecent or lewd acts with a child under sixteen and recommended a twenty-eight-year punishment. See Doc. 36, Ex. 2. The state district court sentenced Petitioner on May 3, 2016 to twenty-eight years' imprisonment and awarded him credit for time already served. Id. Ex. 1. Petitioner directly appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA). Id. Ex. 3. The OCCA affirmed Petitioner's judgment and sentence and denied his request for an evidentiary hearing in a Summary Opinion issued September 14, 2017. Id. Petitioner did not seek certiorari in the United States Supreme Court. See Doc. 1, at 3.
Petitioner, through counsel, filed a motion in the state district court to modify his sentence on April 3, 2018. Doc. 36, Ex. 4. The state district court denied the motion after a hearing on April 19, 2018. Id. Ex. 5.
Petitioner filed a pro se request to check-out transcripts on September 19, 2018. Id. Ex. 6. The state district court denied the request on October 12, 2018. Id. Ex. 7.
Petitioner filed his first pro se application for post-conviction relief along with a brief in support and multiple attachments in the state district court on January 11, 2019. Id. Exs. 8-10. The state responded and Petitioner moved to amend and supplement his post-conviction application. Id. Exs. 11-13. After denying Petitioner's motion to amend and a request for post-conviction counsel, the state district court denied Petitioner's post-conviction application on April 15, 2019. Id. Exs. 14-15. Petitioner, through counsel, then appealed the denial to the OCCA. Id. Exs. 16-17. The OCCA affirmed the district court's denial of post-conviction relief in an order issued October 23, 2019. Id. Ex. 18.
During the pendency of his post-conviction appeal, Petitioner filed, on May 16, 2019, a second motion to check out transcripts in the state district court. Id. Ex. 19. The state district court denied the motion on December 10, 2019. Doc. 28, Ex. 17. Petitioner appealed this denial to the OCCA on January 23, 2020, but the OCCA declined jurisdiction over Petitioner's untimely appeal in an order issued February 11, 2020. Doc. 36, Exs. 23-24. Petitioner moved in the OCCA for an appeal out-of-time but the court declined jurisdiction and dismissed the matter on June 5, 2020. Id. Exs. 26-27.
Petitioner filed his second pro se application for post-conviction relief on May 13, 2020. Id. Ex 25. The state district court denied the second application on September 21, 2020.
See https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahomaνmb er=cf-2013-8064 (last accessed December 7, 2020). The undersigned takes judicial notice of Petitioner's criminal docket sheet in Oklahoma County District Court Case No. CF-2013-8064. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
Petitioner filed his habeas corpus petition in this Court on February 7, 2020. Doc. 1.
This Court received and file-stamped the petition on February 7, 2020. The Court generally deems the petition filed on the day Petitioner gave it to prison authorities for mailing. Fleming v. Evans, 481 F.3d 1249, 1255 n.2 (10th Cir. 2007); Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). Petitioner, however, does not specify when he placed his petition in the prison mailing system. See Doc. 1, at 26-27. Therefore, the undersigned applies the date the Court received the petition. See Price v. Philpot, 420 F.3d 1158, 1164-65 (10th Cir. 2005) (holding that to take advantage of the prison mailbox rule, the prisoner bears the burden of attesting he gave the pleading to officials for filing). Although the Court later allowed Petitioner to file an amended petition, which he filed on July 22, 2020, see Docs. 18, 23, the Court considers the date the original petition was filed for statute of limitations purposes.
II. Petitioner's habeas claims.
Petitioner raises twelve grounds for relief in his habeas petition. In Ground One, Petitioner asserts his appellate counsel was ineffective. Doc. 23, at 6. In Grounds Two and Three, Petitioner alleges ineffective assistance of trial counsel. Id. at 7-8. In Ground Four, Petitioner alleges state law trial error. Id. at 9. Petitioner asserts in Ground Five that the evidence was insufficient to support his conviction. Id. at 10. In Ground Six, Petitioner alleges “jury misconduct/jury tampering contributed to [his] conviction.” Id. at 11. Petitioner asserts in Ground Seven that the state failed to disclose “‘Brady' information after a request from defense counsel.” Id. at 12. In Ground Eight, Petitioner asserts trial errors “resulted in the conviction of one who is actually innocent.” Id. at 13. Petitioner argues in Ground Nine that prosecutorial misconduct violated his right to due process. Id. at 14. In Ground Ten, Petitioner alleges “judicial bias contributed to [his] conviction.” Id. at 15. Petitioner asserts in Ground Eleven that the state trial court judge's rulings denied him the right to present a complete defense. Id. at 16. And in Ground Twelve, Petitioner argues the “accumulation of error warrants reversal.” Id. at 17.
III. Analysis.
A. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996.
AEDPA established a one-year limitation 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 limitation 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. The statute includes a tolling provision for properly filed post-conviction actions:
The time during which a properly filed application for State post-conviction 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. § (d)(2). To meet the “properly filed” requirement, an inmate must comply with state procedural requirements. Habteselassie v. Novak, 209 F.3d 1208, 1210-11 (10th Cir. 2000) (defining a “properly filed” application as “one filed according to the filing requirements for a motion for state post-conviction relief” and giving examples of such requirements).
1. Starting date under 28 U.S.C. § 2244(d)(1)(A).
Respondent contends that § 2244(d)(1)(A) applies to this case. Doc. 36, at 11. Other than the finality of his conviction, Petitioner asserts no other starting date for the statute of limitations in his petition. Doc. 23, at 19.
Respondent asserts Petitioner's conviction became final on December 13, 2017, after the ninety-day period for seeking certiorari in the United States Supreme Court expired. Doc. 36, at 12. Petitioner's statutory one-year limitation period began to run the next day, and Petitioner's statutory year expired on December 14, 2018. Id.
Unless a petitioner shows otherwise, the limitation period generally runs from the date the judgment becomes “final, ” as provided by § 2244(d)(1)(A). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Petitioner's conviction and sentence became final on December 13, 2017, ninety days after the Oklahoma Court of Criminal Appeals affirmed them. See Collins v. Bear, 698 Fed.Appx. 946, 948 (10th Cir. 2017) (holding that the petitioner's convictions became final ninety days after the OCCA affirmed his convictions). The one-year period of limitation begins to run the day after a conviction is final. See Harris v. Dinwiddie, 642 F.3d 902, 906-07 n.6 (10th Cir. 2011); see also United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003) (adopting the “anniversary method” wherein “‘the day of the act . . . from which the designated period of time begins to run shall not be included'” (quoting Fed.R.Civ.P. 6(a))). Petitioner's limitation period began on December 14, 2017, and, absent tolling, expired one year later, on December 14, 2018.
B. Availability and effect of tolling on the limitation period.
1. Statutory tolling.
The AEDPA allows for tolling of the limitation period while a properly filed state post-conviction action is pending before the state courts. See 28 U.S.C. § 2244(d)(2). Under the “Timeliness of Petition” portion of his petition, Petitioner lists his state court filings and asserts he is entitled to seventeen days of tolling while his motion to modify his sentence was pending, sixty-six days of tolling while his motions to check out transcripts were pending and “290 days [of tolling] from the mailing of his Application for Post-Conviction relief to the denial of the Appeal of its denial on the 23rd day of October 2019.” Doc. 23, at 19. Respondent argues that Petitioner is entitled only to sixteen days of tolling during the pendency of his motion to modify his sentence which extended his year to December 31, 2018. Doc. 36, at 14-16. He argues Petitioner's other state court filings either did not toll the limitations period or were filed after the period had expired. Id. at 17-18. The undersigned agrees the petition is untimely even after the Court applies additional tolling time.
Petitioner argues in his response to the motion to dismiss that the mailing dates, not the file-stamped dates, on his state-court pleadings should govern the Court's time calculations. Doc. 37, at 2. In Oklahoma, however, the OCCA does not recognize the prisoner mailbox rule for state filings. See Moore v. Gibson, 250 F.3d 1295, 1298-99 (10th Cir. 2001) (“Because Oklahoma does not recognize the prisoner mailbox rule, it is immaterial when [petitioner] gave his petition to prison officials, and his state petition was thus filed too late to toll the § 2244(d) limitations period, rendering his federal petition untimely.”). Thus, the date Petitioner gave his pleadings to prison officials for filing in the state district court or the OCCA have no bearing on this Court's statute of limitations calculations. See Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003) (“[S]tate procedural law must govern when determining whether a state petition is properly filed and, consequently, the federal mailbox rule announced in Houston v. Lack does not apply to § 2244(d)(2) for purposes of determining when the tolling period for a properly-filed state petition begins.” (internal quotation marks omitted)).
a. April 3, 2018 motion to modify sentence.
Petitioner, through counsel, filed his motion to modify his sentence on April 3, 2018. Doc. 36, Ex. 4. The state district court denied the motion on April 19, 2018. See Id. Ex. 5. Because Oklahoma law does not provide for an appeal of a motion for sentence modification, Petitioner was entitled to seventeen days of tolling while his motion remained pending before the state district court. See Wall v. Kholi, 562 U.S. 545, 556 (2011) (explaining that a motion to reduce sentence “involves judicial reexamination of the sentence to determine whether a more lenient sentence is proper” and holding that such collateral motions “trigger[] AEDPA's tolling provision”); see also Doby v. Dowling, 632 Fed.Appx. 485, 488 (10th Cir. 2015) (assuming the limitations period was tolled during the time a petition for judicial review and sentence modification was pending before the state district court but not for any appeal time because Oklahoma law “does not provide for appellate review” of this type of motion (citing Wall, 562 U.S. at 547 and Okla. Stat. tit. 22, § 982a)). With this additional time added to December 14, 2018, Petitioner's one-year statute of limitations expired on December 31, 2018.
b. September 19, 2018 “Motion to ‘Check Out' Transcripts.”
Petitioner filed a pro se motion to check out transcripts on September 19, 2018. Doc. 36, Ex. 6. The state district court denied the motion on October 12, 2018. Id. Ex. 7. But this motion does not qualify as an application for post-conviction or collateral review under § 2244(d)(2). See May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003) (holding that the district court “correctly determined that the limitations period should not be tolled during the pendency of [petitioner's] various motions for transcripts and petitions for writs of mandamus relating to those motions”); Mack v. Falk, 509 Fed.Appx. 756, 758 (10th Cir. 2013) (“As the district court correctly concluded, [petitioner's] April 2003 request for transcripts did not constitute an application for post-conviction or other collateral review with respect to the pertinent judgment or claim, and, therefore, did not toll the limitations period.” (internal quotation marks omitted)); Osborne v. Boone, 176 F.3d 489, 1999 WL 203523, at *1 (10th Cir. 1999) (“[Petitioner's] attempts to obtain trial records and transcripts at public expense are not collateral proceedings which would result in the tolling of the filing period under § 2244(d)(2).”). So, there was no tolling of the limitations period during the motion's pendency.
c. January 11, 2019 post-conviction application.
Petitioner filed his first post-conviction application on January 11, 2019, after his statutory year had expired on December 31, 2018. See Doc. 36, Ex. 8. The statutory tolling provision does not apply to applications for post-conviction relief filed after the one-year limitation period has expired. See 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.”); Green v. Booher, 42 Fed.Appx. 104, 106 (10th Cir. 2002) (“[S]tate application [for post-conviction relief] could not toll the federal limitation period, because [petitioner] did not file it until after the one-year period had expired.”). As Petitioner did not file this application within the one-year limitation period, Petitioner cannot benefit from statutory tolling of the federal limitation period during its pendency.
d. Petitioner's remaining state-court filings.
Petitioner's remaining state-court filings, including his second motion to check out transcripts and his second post-conviction application, did not toll the limitations period. See Doc. 36, Exs. 19, 25. As the Court explained above, even if Petitioner had filed his second motion to check out transcripts during the statutory year it does not pause the limitations period because it does not qualify as an application for post-conviction or collateral review under § 2244(d)(2). See May, 339 F.3d at 1237. And Petitioner's second post- conviction application, which he filed well after the expiration of the limitations period, did not toll the limitations period. Clark, 468 F.3d at 714; Green, 42 Fed.Appx. at 106.
2. Equitable tolling.
Petitioner's statute of limitations expired on December 31, 2018. Petitioner filed his federal habeas corpus petition in this Court on February 7, 2020-over one year after the statutory deadline. Unless equitable tolling applies to save Petitioner's petition, it is untimely and the Court must dismiss it.
“[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 v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). Even assuming a diligent pursuit of rights, the one-year period of limitation “is subject to equitable tolling . . . only in rare and exceptional circumstances.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citation omitted). Petitioner must “demonstrate[] that the failure to timely file was caused by extraordinary circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Petitioner has the burden of proving that equitable tolling applies. Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). “Simple excusable neglect is not sufficient.” Gibson, 232 F.3d at 808.
Petitioner argues he should be granted equitable tolling during the time he “awaited access to the transcripts” because he needed them to develop his post-conviction arguments. Doc. 37, at 3-4. But “the lack of access to transcripts and other filings does not provide a basis for equitable tolling.” United States v. Titties, No. CIV-19-594-R, 2019 WL 3806632, at *2 (W.D. Okla. Aug. 13, 2019) (citing 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.”)); see also Levering v. Dowling, 721 Fed.Appx. 783, 788 (10th Cir. 2018) (“[N]either the difficulty in obtaining trial court transcripts nor [petitioner's] limited time in the law library are ‘extraordinary circumstances' that would justify the use of equitable tolling.”). Further, Petitioner's delay of nearly nine months after his conviction and sentence were final to request transcripts and his failure to seek any post-conviction relief until after the expiration of the statute of limitations shows he lacked the diligence required to warrant equitable tolling. See, e.g., Levering, 721 Fed.Appx. at 788 (holding the petitioner lacked due diligence where he “failed to provide any indication of the actions he took after filing his motion for transcripts and exhibits with the trial court” and he “did not seek any post-conviction relief until one month before his AEDPA deadline expired”).
Petitioner also seeks equitable tolling during the time his facility's law library was closed or understaffed from December 2, 2018 until January 7, 2019 when he “was allowed back in the law library.” Doc. 37, at 5-6. He states this “extraordinary circumstance” prevented him from timely mailing his state post-conviction application. Id. Limited time in the law library, however, is not considered an extraordinary circumstance. See, e.g., Parker v. Jones, 260 Fed.Appx. 81, 85 (10th Cir. 2008) (“[S]tanding alone, it is beyond peradventure that such vague allegations [of lack of access to the law library or legal assistance] will not justify equitably tolling the limitations period.”). Instead, a petitioner must show the steps he took to diligently pursue his claims despite the alleged lack of access. See, e.g., Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (denying equitable tolling of the limitations period because the petitioner had “provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims”); see also Marsh, 223 F.3d at 1221 (“[E]ven assuming that such a short closing of a prison law library could be considered ‘extraordinary,' [petitioner] has not shown how this lack of access caused his delay in filing.”).
Petitioner cites the law library's closure in December 2018 but then asserts he should be granted “fifty days” of equitable tolling for the time “the law library was closed.” Doc. 37, at 6. Petitioner does not explain his discrepancy. His own exhibit shows the law library was fully staffed and open on December 17, 2018. Doc. 1, Ex. 6, at 4. Facility officials also informed Petitioner that if he “ha[d] and could show a deadline” he would “receive more time to work on [his] case.” Id.
Other than referencing a request to staff wherein he sought to “document the law library availability for the 2018 calendar year, ” Petitioner does not set forth any specific steps taken by him to diligently pursue his claims despite the law library's intermittent December closures. Doc. 37, at 5 (citing Ex. 1). Petitioner is not entitled to equitable tolling on this basis. Marsh, 223 F.3d at 1221.
3. Fundamental miscarriage of justice.
Having found Petitioner's statute of limitations has expired, the final issue is whether to allow Petitioner to bypass the limitation period because he has presented “a ‘credible showing of actual innocence.'” Doe v. Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quoting McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)). But “[t]o 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 Petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327).
Petitioner asserts he is innocent because people who were biased against him made false allegations of abuse and because the prosecutor was deceptive. See Doc. 37, at 6-7. But Petitioner presents no new, reliable exculpatory evidence in support of his actual innocence claim as required by Schlup.“[A]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted). There is thus no basis for bypassing the statute of limitations bar in this case.
Petitioner asserts that certain Facebook posts written by persons other than the child-victim reveal a possible motive against him. Doc. 37, at 7-8.
IV. Recommendation and notice of right to object.
Petitioner filed his habeas corpus petition past the expiration of the statute of limitations. No. tolling, either statutory or equitable, may be applied to save the petition. The undersigned therefore recommends granting Respondent's motion to dismiss Petitioner's petition as untimely filed. Docs. 35-36. The undersigned also recommends denying as moot Petitioner's motion for leave to conduct discovery. Doc. 38.
The undersigned advises the parties of the right to file an objection to this Report and Recommendation. See 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Any objection must be filed with the Clerk of Court on or before January 6, 2021. The undersigned further advises the parties that the failure to file a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all the issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED.