Opinion
No. CIV-06-48-C.
March 31, 2006.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging the conviction for Burglary in the First Degree entered in the District Court of Bryan County, Case No. CF-96-217, and the conviction for Escape from County Jail, after former conviction of two or more felonies, entered in the District Court of Bryan County, Case No. CF-1999-437. Respondent has moved to dismiss the Petition on the ground that it is time-barred by operation of 28 U.S.C. § 2244(d)(1)(A), and Petitioner has responded to the dispositive motion. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that Respondent's Motion to Dismiss be GRANTED and the Petition be DISMISSED on the basis that the Petition is untimely filed under 28 U.S.C. § 2244(d)(1)(A).
Rule 2(e), Rules Governing Section 2254 Cases, prohibits an inmate from filing a habeas petition challenging judgements "of more than one state court." Arguably, Petitioner may join his challenges to the two separate judgments in one petition because they originated from the same state court. Rule 2(e), Rules Governing Section 2254 Cases. Additionally, although Bryan County is not located within the jurisdictional confines of the Western District of Oklahoma, this Court has concurrent jurisdiction over the habeas proceeding because this is the district wherein Petitioner is in custody. 28 U.S.C. § 2241(d).
I. Background
Petitioner is attempting to challenge a conviction entered against him in the District Court of Bryan County, Case No. CF-96-217, on October 31, 1996. The judgment and sentence entered in that criminal proceeding reflects that Petitioner entered a guilty plea to one count of Burglary in the First Degree and was sentenced to serve a ten-year term of imprisonment with the last three years suspended. Brief in Support of Motion to Dismiss, Ex. C. Petitioner is attempting to challenge a second conviction entered against him in the District Court of Bryan County, Case No. CF-1999-437, on January 3, 2000. The judgment and sentence entered in that criminal proceeding reflects that Petitioner entered a plea of nolo contendere to a charge of Escape from County Jail, after former conviction of two or more felonies, and was sentenced to serve a 20-year term of imprisonment, with the sentence to run concurrently with a sentence entered against Petitioner in Case No. CF-1999-396 and consecutively with a sentence entered against Petitioner in Case No. CF-1999-431. Brief in Support of Motion to Dismiss, Ex. C.
Petitioner concedes in the Petition that he did not appeal these convictions and sentences. Petitioner filed an application for post-conviction relief in these criminal cases in the District Court of Bryan County that was denied by the court on June 21, 2005. Petition, at 11. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed the denial of the post-conviction application in an order entered December 7, 2005. Brief in Support of Motion to Dismiss, Ex. F (Jamison v. State, No. PC-2005-688 (Okla.Crim.App. Dec. 7, 2005) (unpublished op.)). In the OCCA's order, the OCCA concluded that Petitioner was not entitled to judicial review of the merits of his post-conviction claims due to Petitioner's procedural default in failing to appeal the convictions.
II. Limitation Period Governing Filing of Petition
Effective April 24, 1996, the statutes governing federal habeas corpus actions for state and federal prisoners were substantially amended by the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. The AEDPA amends 28 U.S.C. § 2244 by imposing a one-year period of limitation upon the filing of a petition seeking a writ of habeas corpus by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). As an Oklahoma prisoner seeking federal habeas relief, Petitioner's habeas Petition is governed by the AEDPA's amendments. See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (AEDPA's amendments apply to habeas petitions filed after the AEDPA's effective date of April 24, 1996).
Under 28 U.S.C. § 2244(d)(1)(A), the one-year limitation 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 one-year limitation period is tolled for "[t]he time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending. . . ." 28 U.S.C. § 2244(d)(2). Additionally, the one-year limitation period may in rare and extraordinary circumstances "be subject to equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998).
In Case No. CF-96-217 Petitioner pled guilty and was sentenced on October 31, 1996. Under Oklahoma law, in order to appeal from a conviction based on a guilty plea, a defendant must file an application to withdraw the guilty plea within ten days after the pronouncement of a judgment and sentence. Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, ch. 18, App. This conviction became "final" under 28 U.S.C. § 2244(d)(1)(A) on November 10, 1996, ten days after the pronouncement of the judgment and sentence. Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding Oklahoma prisoner's convictions pursuant to entry of guilty pleas were final ten days after judgment and sentences were entered where petitioner failed to appeal the convictions, citing Rule 4.2),cert. denied, 535 U.S. 1034 (2002). The one-year limitation period applicable to the Petitioner's filing of a federal habeas petition expired one year later, on November 10, 1997, absent statutory or equitable tolling exceptions.
Petitioner pled nolo contendere in Case No. CF-1999-437 and was sentenced on January 3, 2000. This conviction became "final" under 28 U.S.C. § 2244(d)(1)(A) on January 13, 2000, ten days after the pronouncement of the judgment and sentence. The one-year limitation period applicable to the Petitioner's filing of a federal habeas petition expired one year later, on January 13, 2001, absent statutory or equitable tolling exceptions.
III. Statutory Tolling Mechanism
Federal law provides that the one-year limitation period is statutorily tolled during the pendency of a "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). With respect to Petitioner's conviction in Case No. CF-96-217, the court docket filed in that case reflects that Petitioner moved for judicial review and modification of his sentence on February 18, 1997, pursuant to Okla. Stat. tit. 22, § 982a, a statutory provision allowing a district court to modify a sentence within twelve months after the sentence is imposed. Brief in Support of Motion to Dismiss, Ex. D. This docketing record reflects that Petitioner's motion was granted after a hearing and the district court entered an order on February 26, 1997, in which the district court modified the judgment and sentence in that case to reflect that four years of the sentence be suspended. Id.; Exs. D, F. Oklahoma's sentence modification procedure "is not part of the direct review process under Oklahoma law." Williams v. Beck, No. 04-6184, 2004 WL 2491764 (10th Cir. Nov. 5, 2004) (unpublished op.). The Tenth Circuit Court of Appeals has indicated in an unpublished opinion that Oklahoma's statutory procedure for modifying sentences does not toll the § 2244(d)(1) limitation period. In Nicholson v. Higgin, No. 05-7032, 2005 WL 1806446 (10th Cir. Aug. 2, 2005) (unpublished op.), the Tenth Circuit stated in a footnote that the petitioner had sought judicial review under Okla. Stat. tit. 22, § 982a, and reasoned that because "such motions seek discretionary review [and] their denial is not appealable" they "therefore do not constitute post-conviction proceedings for purposes of tolling the AEDPA limitations period." Id. At *2 n. 2. As in Nicholson, Petitioner's motion pursuant to § 982a was directed to the sentencing court and did not challenge the validity of his conviction and sentence but merely sought consideration of factors that might demonstrate his eligibility for a more lenient sentence. Okla. Stat. tit. 22, § 982a(A) (limiting court's review to a consideration of whether "another penalty" should be imposed "if the court is satisfied that the best interests of the public will not be jeopardized"). Hence, the § 2244(d)(1) statute of limitations applicable to Petitioner's conviction in Case No. CF-96-217 was not tolled during the pendency of this motion.
Even if the limitation period was tolled during the pendency of Petitioner's § 982a motion for eight days, the federal habeas petition is still untimely.
Petitioner filed an application for post-conviction relief in the trial court on April 15, 2005, with respect to his convictions in CF-96-217 and CF-1999-437. Brief in Support of Motion to Dismiss, Ex. F. However, because this post-conviction proceeding was not filed within the one-year limitation period governing the convictions being challenged herein, the post-conviction application does not toll the running of the limitation period. 28 U.S.C. § 2244(d)(2); Fisher, 262 F.3d at 1142-1143. Consequently, under 28 U.S.C. § 2244(d)(1)(A), the Petitioner's habeas Petition filed January 13, 2006, is time-barred unless equitable tolling applies to extend the limitation period.
IV. Equitable Tolling
In this circuit, the § 2244(d)(1) limitation period "may be subject to equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert. denied, 525 U.S. 891 (1998). In Miller, the circuit court contemplated that extraordinary circumstances, i.e., "a constitutional violation [that] has resulted in the conviction of one who is actually innocent or incompetence," may warrant equitable tolling of the § 2244(d)(1) limitation period. Id. at 978. Equitable tolling is appropriate, for instance, "when a prisoner is actually innocent" or "when an adversary's conduct — or other uncontrollable circumstances — prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period" but is not appropriate in circumstances amounting to "excusable neglect." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Nevertheless, the Tenth Circuit has recognized that § 2244(d)(1) "requires inmates to diligently pursue claims" in state and federal courts. Miller, 141 F.3d at 978. Accord, Gibson, 232 F.3d at 808. Petitioner has not diligently pursued his federal claims, nor has he shown any extraordinary circumstances sufficient to warrant the equitable tolling of the limitation period. Accordingly, the Petition should be dismissed on the basis that it is time-barred.
Because the Petition is time-barred, the undersigned declines to address Respondent's alternative assertion that Petitioner is not "in custody" with respect to his conviction in CF-96-217.
RECOMMENDATION
Based on the foregoing findings, it is recommended that Respondent's Motion to Dismiss Petition for Habeas Corpus as Time Barred by the Statute of Limitations (Doc. # 10) be GRANTED and the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED on the basis that the Petition is untimely filed under 28 U.S.C. § 2244(d)(1)(A). Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by April 20th, 2006, in accordance with 28 U.S.C. § 636 and LCvR 72.1. The Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.