Opinion
No. CIV-19-100-HE
04-08-2019
BILLY GENE GRAY, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this action seeking relief under 28 U.S.C. § 2254. Petitioner is challenging his convictions on drug related charges entered in the District Court of Garvin County, Case No. CF-2013-347. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the action be dismissed.
I. Background
On September 15, 2015, Petitioner was found guilty, following a jury trial, of conspiracy to distribute methamphetamine and possession of a controlled dangerous substance with intent to distribute (methamphetamine). Doc. No. 1 ("Petition") at 1; see also Oklahoma State Courts Network, District Court of Garvin County, Case No. CF-2013-347. Petitioner was sentenced on November 9, 2015. Id. Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals ("OCCA") on November 25, 2015. See Oklahoma State Courts Network, OCCA, Case No. F-2015-1042. The OCCA affirmed Petitioner's conviction and sentence on December 16, 2016. Id.
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=garvin&number=CF-2013 00347&cmid=7453
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=F-2015 1042&cmid=117984
On December 14, 2017, Petitioner filed an Application for Post-Conviction Relief with the state district court. See Oklahoma State Courts Network, District Court of Garvin County, Case No. CF-2013-347. The state district court denied the same on January 9, 2018. Id. Petitioner appealed the denial of his post-conviction relief to the OCCA and the OCCA affirmed the denial on March 9, 2018. See Oklahoma State Courts Network, OCCA, Case No. PC-2018-86. Petitioner filed the instant action on January 29, 2019. See generally Petition.
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=garvin&number=CF-2013 00347&cmid=7453
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&number=PC-2018 86&cmid=123249
II. Statute of Limitations
A. Applicable Limitations Period
Under 28 U.S.C. § 2244(d)(1)(A), the one-year limitations period generally begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." The OCCA affirmed Petitioner's convictions in Case No. CF-2013-374 on December 16, 2016. These convictions therefore became "final" under 28 U.S.C. § 2244(d)(1)(A) on March 16, 2017, when the time for Petitioner to seek certiorari review, which he did not do, with the United States Supreme Court expired. Locke v. Saffle, 237 F.3d 1269, 1272 (10th Cir. 2001) ("Under the statute, a petitioner's conviction is not final and the one-year limitation period for filing a federal habeas petition does not begin to run until . . . 'after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed.'") (quoting Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999)).
See Sup. Ct. R. Rule 13(1) (applicant for certiorari has 90 days from date of judgment to file petition for writ of certiorari); 28 U.S.C. § 2101(d).
Petitioner had one year beginning March 17, 2017, to file his federal habeas petition commensurate with 28 U.S.C. § 2244(d)(1)(A). Absent statutory or equitable tolling, his one-year filing period expired on March 19, 2018.
March 17, 2018 was a Saturday. Thus, Petitioner's deadline, absent statutory or equitable tolling, was Monday, March 19, 2018.
B. Statutory Tolling
As previously established, Petitioner filed a request for post-conviction relief on December 14, 2017. At that time, 272 days of the limitations period had elapsed, and Petitioner had 93 days remaining in his one year limitations period. The one year limitations period was statutorily tolled under 28 U.S.C. § 2244(d)(2) while the motion was pending before the state district court. Additionally, the statutory limitations period was further tolled for the 30-day period during which Petitioner could timely appeal the district court's decision to the OCCA. Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding limitations period is tolled during period in which petitioner could have sought an appeal under state law). On January 26, 2018, Petitioner timely filed his appeal of the state district court's ruling and the OCCA affirmed the lower court's decision on March 9, 2018. Thus, the limitations period resumed running on March 10, 2018, and expired on June 11, 2018. Petitioner did not file the instant action until January 29, 2019. Consequently, the Petition is not timely filed unless the limitations period is extended due to equitable tolling principles.
C. Equitable Tolling
The limitations period may be equitably tolled in extraordinary circumstances so long as the petitioner has diligently pursued his federal claims. Holland v. Florida, 560 U.S. 631, 645 (2010). See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) ("Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way."). Actual innocence or incompetence may constitute extraordinary circumstances that warrant equitable tolling of the limitations period. See Gibson, 232 F.3d at 808 (recognizing equitable tolling might be appropriate where prisoner is actually innocent). On the other hand, a claim of legal, not factual, innocence does not provide a basis for equitable tolling. See Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (noting that actual innocence means factual innocence and that petitioner's claim his guilty plea was involuntary did not assert actual innocence of the crime to which he pled guilty); Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (noting legal defenses to criminal charge do not show factual innocence). See also Craft v. Jones, 435 F. App'x 789, 792 (10th Cir. 2011) (habeas petitioner's self-defense argument implicated legal, not factual, innocence and did not warrant equitable tolling).
Thus, to warrant equitable tolling of the limitations period, Petitioner must show that his convictions "[have] probably resulted in the conviction of one who is actually innocent." Bouslev v. United States. 523 U.S. 614, 623-24 (1998) (quotations omitted). Petitioner's grounds for relief in his Petition for Writ of Habeas Corpus do not rely on claims of actual innocence. Instead, Petitioner asserts arguments pertaining to the alleged incompetency and shortcomings of his trial and appellate counsels, prosecutorial misconduct, and a lack of due process, as well as the OCCA's alleged error in not addressing the merits of similar arguments raised in his post-conviction appeal. See generally Petition.
Petitioner has not shown extraordinary circumstances warranting the application of equitable tolling principles to extend the limitations period. Because the Petition is not timely filed, the Court should decline to review the merits of the untimely-filed Petition and dismiss the action.
RECOMMENDATION
Based on the foregoing findings, it is recommended the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be dismissed as untimely. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by April 29th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 8th day of April, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE