Opinion
Case No. CIV-05-812-C.
November 29, 2005
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). In accordance with Rule 4, Rules Governing Section 2254 Cases, the petition has been promptly examined, and for the following reasons, it is recommended that the petition be dismissed in part as untimely filed under 28 U.S.C. § 2244(d)(1)(A).
Petitioner is attempting to challenge his conviction upon his pleas of guilty entered on December 16, 2003, to first degree manslaughter (Count One); causing an accident resulting in great bodily injury (Count Two); leaving the scene of an accident resulting in death (Count Three); driving while privilege revoked (Count Four); and failure to carry valid security verification (Count Five), all after former conviction of a felony. District Court of Oklahoma County, Case No. CF-2002-4906. Petitioner was sentenced in accordance with a plea agreement to ten years imprisonment on Counts One and Three, five years imprisonment on Count Two, one year imprisonment on Count Four, and a fine of $50.00 on Count Five. All sentences were ordered served concurrently with each other and with Petitioner's sentences in Case Nos. CF-97-4134 and CF-99-4849. See Petitioner's "Memorandum in Support of Petition for Habeas Corpus" (hereinafter "Petitioner's Brief"), attached Judgment and Sentence, State of Oklahoma v. Frederick T. Heinken, Case No. CF-02-4906. In his supporting brief Petitioner appears to raise a single ground for relief, essentially alleging that his guilty plea was not voluntarily and intelligently entered because the trial court failed to inform him of all the elements of first degree manslaughter and because of other "ext[e]nuating circumstances," such as Petitioner's hearing and sight limitations before and at the plea proceeding. Petitioner's Brief at 3-4.
Petitioner does not set forth his grounds for habeas relief in the petition and states: "All grounds for relief are outlined in the attached "Memorandum." Petition at 6. Petitioner's "Memorandum," or supporting brief, is unpaginated beyond page four.
Discussion
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court is under an obligation to review habeas petitions promptly and to summarily dismiss a petition "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief. . . ." Petitioner appears to recognize the untimeliness of his § 2254 habeas action and states in his petition that "If Petitioner is late, it will be by only a few days." Petition at 14. He further alleges that "in accordance with fair practice and equal protection" the one-year limitation period should be tolled and that he has been delayed by an inadequate law library and denial of access to a person trained in the law. Id. For the reasons discussed below, the undersigned finds that the petition is untimely and Petitioner is not entitled to equitable tolling of the limitation period.The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which took effect on April 24, 1996, amended 28 U.S.C. § 2244 to provide that "[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," running 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.28 U.S.C. § 2244(d)(1)(A)-(D). As a general rule, the period of limitation under this statute runs from the date the judgment became "final" as provided by Section 2244(d)(1)(A), unless the petitioner alleges facts that would implicate the provisions set forth in Section 2244(d)(1)(B), (C), or (D). Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Additionally, in calculating the limitation period for actions under 28 U.S.C. § 2254, federal courts are required to toll the time a petitioner spent seeking "[s]tate post-conviction or other collateral review with respect to the pertinent judgment or claim. . . ." See 28 U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998).
Petitioner entered his pleas of guilty and was sentenced in each case on December 16, 2003. See Petition at 2. Under Oklahoma law, in order to appeal from a conviction on a guilty plea, a defendant must file an application to withdraw a guilty plea within ten days after the pronouncement of a judgment and sentence. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals (OCCA) (to appeal from a conviction on a plea of guilty the defendant must file an application to withdraw the plea within ten days from the date of the pronouncement of judgment and sentence). Petitioner admits that he did not appeal his conviction. Petition at 3. Therefore, his conviction became final for purposes of § 2244(d)(1)(A) on December 26, 2003. Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (holding petitioner's three convictions pursuant to the entry of guilty pleas were final ten days after entry of each judgment and sentence where petitioner failed to appeal each conviction, citing OCCA Rule 4.2). Absent any tolling events, Petitioner was required to file his federal habeas petition within one year — by December 26, 2004. See Malone v. State, Nos. 03-6246, 03-6175, 2004 WL 1249850, at *1 (10th Cir. June 8, 2004) (the one-year limitation period should be calculated using anniversary date method) (citing United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003)). However, Petitioner did not initiate the present action until July 5, 2005, at the earliest. Thus, absent statutory or equitable tolling of the limitation period, the petition is untimely under § 2244(d)(1).
The petition was file-stamped on July 18, 2005. However, the petition contains a verification dated July 8, 2005, stating that the petition was placed in the prison mailing system on that date. The petition also indicates that the document was signed on July 5, 2005. The petition is deemed "filed" when Petitioner deposited it in the prison mail system. See Hoggro v. Boone, 150 F.3d 1223, 1226 n. 3 (10th Cir. 1998); see also Houston v. Lack, 476 U.S. 266, 276 (1988) (holding that a prisoner's notice of appeal is deemed "filed" when he delivers it "to prison authorities for forwarding to the district court"). Even liberally construing the petition filed on July 5, 2005, Petitioner's habeas action is untimely.
Statutory Tolling
Federal law provides that the limitation period is tolled for a "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). However, in order for a state proceeding to toll the period of limitations, it must be an "application for post-conviction relief recognized as such under governing state procedures." Habteselassie v. Novak, 209 F.3d 1208, 1211 (10th Cir. 2000) (quoting Bennett v. Artuz, 199 F.3d 116, 123 (2d Cir. 1999)) (emphasis added). On June 2, 2004, Petitioner filed a request for sentence modification in the state district court. Petitioner's Brief, Ex. B. The Oklahoma County District Court docket shows Petitioner's motion for sentence modification was denied on August 16, 2004. See Oklahoma State Courts Network, available athttp://www.oscn.net/applications/ocisweb/GetCaseInformation. asp?submitted=trueviewtype=caseGeneralcasemasterID=1564956db=Oklahoma (accessed Nov. 2, 2005).
The relevant Oklahoma statutory provision, Okla. Stat. tit. 22, § 982a, provides in part:
Any time within twelve (12) months after a sentence is imposed or within twelve (12) months after probation has been revoked, the court imposing sentence or revocation of probation may modify such sentence or revocation by directing that another penalty be imposed, if the court is satisfied that the best interests of the public will not be jeopardized.
Okla. Stat. tit. 22 § 982a(A).
The Tenth Circuit has recently indicated that motions for sentence modification filed by Oklahoma inmates pursuant to § 982a do not toll the § 2244(d)(1) one-year period. In Nicholson v. Higgins, No. 05-7032, 2005 WL 1806446 (10th Cir. Aug. 2, 2005), the Circuit Court affirmed the district court's dismissal of a § 2254 habeas petition as untimely and noted that the petitioner's motion for sentence modification pursuant to § 982a did not act to toll the one-year period. The Court explained that § 982a sentence modification actions "seek discretionary review, their denial is not appealable, and they therefore "do not constitute post-conviction proceedings for purposes of tolling the AEDPA limitations period." Id. at *2 n. 2.
Under Oklahoma law, the Uniform Post-Conviction Procedure Act, Okla. Stat. tit. 22, §§ 1080-1088, provides the procedures for a defendant to challenge his or her conviction and sentence after resolution of the direct appeal. As in Nicholson, Petitioner's request for sentence modification was directed to the sentencing judge and did not challenge the legal sufficiency of his conviction or sentence, but merely sought the judge's consideration of factors which might result in a more lenient sentence. See Petitioner's Brief, Ex. B. As such, the motion for sentence modification does not act to toll the one-year limitation period. See also Williams v. Beck, No. 04-6184, 2004 WL 2491764 (10th Cir. Nov. 5, 2004) (finding that the statutory sentence modification mechanism "is not part of the direct review process under Oklahoma law" and therefore does not determine the beginning of the one-year limitation period under 28 U.S.C. § 2244(d)(1)(A)); cf. Jones v. Calbone, No. 99-5153, 2000 WL 293780 (10th Cir. Mar. 21, 2000) (questioning the district court's conclusion that "[Oklahoma] post-conviction proceedings that challenge the execution of the sentence, rather than the constitutionality of the judgment, do not toll the limitations period" under § 2244(d)(2)).
Petitioner did not seek post-conviction review of his conviction and sentence until November 23, 2004, 33 days before the expiration of the one-year limitation period when he filed in the state district court an application for post-conviction relief, pursuant to Okla. Stat. tit. 22, § 1081. See Petitioner's Brief, attached Oklahoma County District Court Findings of Fact, Conclusions of Law and Order Denying Post-Conviction Relief, Case No. 02-4906 (listing relevant dates). The district court denied post-conviction relief on January 28, 2005, and Petitioner appealed the district court's decision to the OCCA. Id. On May 3, 2005, the OCCA affirmed the denial of post-conviction relief. Petitioner's Brief, attached OCCA Order Affirming Denial of Application for Post-Conviction Relief, Case No. PC-2005-195. On that date, the statutory tolling ended and Petitioner had 33 days, or until June 6, 2005, to file his federal habeas petition. Therefore, even liberally considering the petition filed on July 5, 2005, Petitioner's habeas action was not timely filed.
Petitioner's one-year limitation period expired on June 5, 2005, which is a Sunday, and therefore, Petitioner had until the next business day, June 6, 2005, to file a timely habeas petition. Fed.R.Civ.P. 6(a).
Equitable Tolling
Citing Bounds v. Smith, 430 U.S. 817 (1977), Johnson v. Avery, 393 U.S. 483 (1969) and other pre-AEDPA cases discussing access to the courts, Petitioner attempts to avoid his failure to file within the limitations period by arguing that he was not provided with adequate access to the courts. Petition at 14. His argument is essentially one for equitable tolling of the limitations period. Although the United States Supreme Court has never squarely addressed the question whether equitable tolling is applicable to AEDPA's limitation period, see Pace v. DiGuglielmo, ___ U.S. ___, ___ n. 8, 125 S.Ct. 1807, 1815 n. 8 (2005), the Tenth Circuit has recognized that "§ 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling." Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). However, the Circuit Court has held that equitable tolling is appropriate only "in rare and exceptional circumstances," such as when a prisoner is actually innocent, when uncontrollable circumstances prevent the prisoner from timely filing, or when the prisoner actively pursued judicial remedies but filed a defective pleading during the statutory period. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quotations and citations omitted). Simple excusable neglect is not sufficient. Id. at 811. The burden is on the petitioner to demonstrate the circumstances that justify equitable tolling. Miller, 141 F.3d at 977. Further, equitable tolling "is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." Garcia v. Shanks, 351 F.3d 468, 473 n. 2 (10th Cir. 2003) (internal quotations omitted).
Petitioner alleges that any delay in filing his habeas petition is due in part to the inadequacies of the prison law library, and he further suggests that he was denied "access to a law library or person trained in the law while housed in the county jail." Petition at 14. Petitioner's allegation that he is entitled to equitable tolling of the one-year period because of inadequate access to a law library is conclusory and insufficient to justify equitable tolling. He neither alleges that he requested legal resources which were denied, nor explains how the lack of such resources prevented his timely filing; rather, he presents only a bare allegation regarding inadequate access to the public defender's office, to prison libraries and/or access to a law library and legal research assistants. Such vague and conclusory allegations do not justify equitable tolling. See, e.g., Miller, 141 F.3d at 978 ("It is not enough to say that the [prison] lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate."); Bradley v. Poppel, No. 99-6205, 1999 WL 992981 (10th Cir. Nov. 2, 1999) ("Bradley's conclusory allegation that prison library facilities are inadequate is also insufficient to justify equitable tolling."). Here, Petitioner's generalized complaints about access to a prison or jail law library and legal assistance can hardly be described as the sort of extraordinary circumstance that warrants equitable tolling. See Gibson, 232 F.3d at 808 (equitable tolling appropriate, for example, in the case of actual innocence or a timely but defective filing); cf. Lewis v. Casey, 518 U.S. 343, 351 (1996) (holding, in the context of a 42 U.S.C. § 1983 claim, that an inmate must do more than establish that a prison library is "subpar in some theoretical sense"); Nicholson v. Higgins, 2005 WL 1806446, at *2 (finding that inmate's conclusory allegations that he was denied access to a law library during "his 82 days in county jail" failed to demonstrate exceptional circumstances and diligent pursuit of remedies required for equitable tolling). Likewise, Petitioner's claims regarding inadequate assistance from "persons trained in the law" or inmate law clerks does not merit equitable tolling. See Burger v. Scott, 317 F.3d 1133, 1142 (10th Cir. 2003) (recognizing that a delay caused by a prison inmate law clerk does not justify equitable tolling); Marsh, 223 F.3d at 1220 ("The fact that an inmate law clerk was assisting in drafting the state petition does not relieve Mr. Marsh from the personal responsibility of complying with the law."). Moreover, Petitioner's pro se status while preparing his habeas petition does not justify his failure to timely file his petition. Because there is no legal right to counsel in collateral proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), lack of legal assistance cannot constitute sufficient cause for a failure to timely file a habeas petition. See also Williams v. Boone, No. 98-6357, 1999 WL34856, *3 (10th Cir. Jan. 28, 1999) (petitioner's pro se status and unfamiliarity with the law do not justify failure to timely file habeas petition).
In Nicholson, the Circuit Court further found that aside from the conclusory nature of the inmate's complaint of an 82-day denial of a law library facility at the county jail, the inmate was incarcerated at the Howard McLeod Correctional Center (HMCC), the same prison facility in which Petitioner is incarcerated, "where it is undisputed that he had many months to research and prepare, unimpeded, his constitutional claim for habeas corpus review." Nicholson, 2005 WL 1806446, at *2. Likewise, here, Petitioner fails to allege any inadequacies with respect to the law library at HMCC, where according to DOC records, he has been housed since December 31, 2003. See The Oklahoma Department of Corrections website, Offender Information, available at:http://docapp8.doc.state.ok.us/servlet/page?_pageid=394_dad= portal30_schema=PORTAL30doc_num=260207offender_book_id=150767(accessed Nov. 28, 2005).
In his supporting brief, Petitioner alleges that he instructed his trial attorney to appeal and that his attorney filed a notice of intent to appeal but "failed to perfect [the] appeal." Petitioner's Brief at 6. An attorney's failure to perfect an appeal, without disclosure to the petitioner, "might constitute the type of extraordinary circumstances warranting the application of equitable tolling." Cooper v. Bravo, No. 00-2462, 36 Fed. Appx. 343, 347 (10th Cir. Jan. 11, 2002) (citation omitted). However, the state court documents submitted by Petitioner do not support his claim that he instructed counsel to appeal. Following the entry of his guilty pleas on December 16, 2003, Petitioner filed no pleadings for review in the state court until nearly six months later when he requested sentence modification. In that proceeding, he made no claim that counsel failed to file an appeal despite being instructed to do so, and in fact stated "I'm not asking to appeal the case. . . ." Petition, Ex. B at 2. Nothing in the record indicates that Petitioner raised a claim regarding counsel's alleged failure to appeal until he filed his post-conviction application nearly one year after entering his guilty pleas, claiming in part that his counsel was ineffective and he was denied his right to appeal through no fault of his own. Petition, attached Oklahoma County District Court Findings of Fact, Conclusions of Law and Order Denying Post-Conviction Relief, Case No. 02-4906. In denying post-conviction relief, the district court specifically found that the summary of facts form in the case reflected that Petitioner was "fully advised of his right to appeal his conviction and sentence" and that "he understood that right," but he "did not seek to withdraw his plea within the applicable time period or otherwise seek to appeal his conviction to the Court of Criminal Appeals." Id. at 2. The district court further found that Petitioner neither claimed "that counsel failed to advise him of his right to appeal nor that he indicated a wish to do so." Id. at 3. The court also found that in his post-conviction application Petitioner "admitt[ed] that 'he did not contact his attorney and assumed appointed counsel would contact him. . . ." Id. These findings of fact by the district court, which were affirmed by the OCCA on appeal, are presumed correct and Petitioner fails to rebut such findings. 28 U.S.C. § 2254(e)(1). Thus, although Petitioner contends that his counsel failed to appeal as instructed, the record reflects otherwise.
Under these circumstances, Petitioner fails to show that counsel's alleged ineffectiveness constitutes a "rare and exceptional circumstance" worthy of equitable tolling. See Stanley v. McKune, No. 05-3100, 2005 WL 1208931 (10th Cir. May 23, 2005) (refusing to apply equitable tolling based on an attorney's failure to file an appeal when the petitioner did not timely seek to rectify the mistake); Loving v. Mahaffey, No. 01-7063, 2001 WL 1564057 (10th Cir. Dec. 10, 2001) (holding that equitable tolling was unavailable due to the habeas petitioner's lack of diligence, notwithstanding his placement of blame on his attorney for failure to file a notice of appeal as requested). Moreover, following the OCCA's May 3, 2005, order affirming the denial of post-conviction relief, Petitioner waited at least another 60 days until he prepared and signed his federal habeas petition, approximately 30 days after the limitations period had expired. The record contains no compelling explanation for Petitioner's lack of diligence. Therefore, Petitioner has shown neither due diligence in pursuing his claims nor "extraordinary circumstances" which prevented him from preparing and filing his habeas petition by June 6, 2005. See Marsh v. Soars, 223 F.3d 1217, 1220 (10th Cir. 2000) (noting that equitable tolling "is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control"); Miller, 141 F.3d at 978 (same). For this reason, equitable tolling principles should not be applied and the petition should be dismissed as untimely pursuant to 28 U.S.C. § 2244(d)(1)(A).
RECOMMENDATION
For the reasons discussed herein, it is the recommendation of the undersigned Magistrate Judge that the petition be dismissed upon filing as time-barred pursuant to 28 U.S.C. § 2244(d)(1)(A). Petitioner is advised of his right to object to this Report and Recommendation by the 19th day of December, 2005, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. Petitioner must file any objections with the Clerk of this Court. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives any 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.