Opinion
Case No. CIV-19-737-D
09-19-2019
ROBERT LAWRENCE LONG, Petitioner, v. SCOTT CROW, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254, seeking habeas relief from a state court conviction. Chief United States District Judge Timothy D. DeGiusti has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition has been promptly examined, and for the reasons set forth herein, it is recommended that the action be DISMISSED on filing as untimely.
I. PROCEDURAL BACKGROUND
On October 17, 2016, a jury convicted Petitioner of felony murder, attempted robbery, and possession of a firearm after a former felony conviction. (ECF No. 1:1). On April 3, 2018, the Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction. (ECF No. 1:2). On April 23, 2018, Petitioner filed an Application for Post-Conviction Relief in the district court. (ECF No. 1:3). The district court denied the application on July 3, 2018. (ECF No. 1:3). Petitioner did not appeal the district court's denial. (ECF No. 1:6). Mr. Long filed the instant habeas petition on August 12, 2019. (ECF No. 1).
II. SCREENING REQUIREMENT
District courts must review habeas petitions promptly and summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4, Rules Governing Section 2254 Cases. Additionally, "district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition." Day v. McDonough, 547 U.S. 198, 209 (2006). However, "before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Day, 547 U.S. at 210. Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising the issue sua sponte, the district court must "assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits or by dismissing the petition as time barred." Day, 547 U.S. at 210 (internal quotation marks omitted); Thomas v. Ulibarri, No. 06-2195, 214 F. App'x 860, 861 n.1 (10th Cir. 2007). Finally, a Court may dismiss a § 2254 habeas petition sua sponte only if the petition is clearly untimely on its face. Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1085 (10th Cir. 2008).
III. AEDPA LIMITATIONS PERIOD
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a one-year limitations period for claims of a habeas petitioner in state custody. Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999). The one-year limitations period runs 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;28 U.S.C. § 2244(d)(1)(A)-(D). Unless a petitioner alleges facts implicating subsection (B), (C), or (D), the limitations period generally begins to run from the date on which the conviction becomes final. See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000).
(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.
Because Petitioner did not seek review in the United States Supreme Court, his conviction became final on July 2, 2018—90 days following the OCCA's April 3, 2018 affirmance of Mr. Long's conviction. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001). Thus, without tolling, Petitioner's statute of limitations to file a habeas petition expired on July 2, 2019. But Mr. Long filed the Petition on August 12, 2019, approximately five weeks after the limitations period had expired. (ECF No. 1:1). Thus, under § 2244(d)(1)(A) this action is untimely absent statutory or equitable tolling.
IV. STATUTORY TOLLING
The AEDPA limitations period is tolled pending adjudication of a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim. See 28 U.S.C. § 2244(d)(2). Here, Mr. Long filed an Application for Post-Conviction Relief on April 23, 2018. (ECF No. 1:3). But because the application was filed before Petitioner's conviction was final, the filing date had no effect on tolling until the conviction became final on July 3, 2018. See Vickers v. Bear, No. CIV 14-528-RAW-KEW, 2016 WL 1032817, at *2 (E.D. Okla. Mar. 15, 2016) (noting that post-conviction application filed before conviction was final "had no tolling effect until ... the first day of the statutory year."). And although Mr. Long did not appeal the denial of his post-conviction application, he is entitled to a period of tolling for the time period on which he could have filed an appeal. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding that the tolling of a properly filed application for post-conviction relief includes the time an applicant could seek appellate review of a state court's denial of his application, whether or not he actually seeks such review). Under Oklahoma law, this would entitle Mr. Long to an additional 30 days of tolling beginning July 3, 2018. See Windsor v. Patton, 623 F. App'x 943, 945 (10th Cir. 2015) (noting that Oklahoma allows 30 days to file a post-conviction appeal); Rule 5.2(C), Rules of the Oklahoma Court of Criminal Appeals.
Thus, the Court should conclude that Mr. Long is entitled to a period of tolling for 31 days—from the beginning of the statutory period when his conviction became final and his post-conviction appeal was pending through the last date in which he could have appealed his post-conviction denial in the OCCA. As stated, without tolling, Petitioner's one-year limitations period expired July 2, 2019. See supra. But with the additional 31 days, Petitioner had until August 2, 2019 to file the habeas Petition. But Mr. Long filed the Petition on August 12, 2019—ten days too late. Accordingly, unless equitable tolling is applicable, the instant petition is untimely.
V. EQUITABLE TOLLING
The AEDPA limitations period may be subject to equitable tolling. See Holland v. Florida, 560 U.S. 631, 634 (2010). But this form of tolling is only available when an extraordinary circumstance stood in the petitioner's way and prevented timely filing. See Lawrence v. Florida, 549 U.S. 327, 336 (2007). And, even when the circumstances are extraordinary, equitable tolling is only available when the petitioner has been diligent in the pursuit of his habeas claims. See Holland, 631 U.S. at 653. Under this standard, the petitioner bears a "'strong burden to show specific facts.'" Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (citations omitted).
Mr. Long offers no argument in support of equitable tolling. See ECF No. 1. And in his habeas petition, he has left blank the section on "timeliness of petition." (ECF No. 1:13). Mr. Long has neither proven that any "extraordinary circumstances" existed nor has he satisfied his burden to prove that he otherwise entitled to equitable tolling.
VI. SUMMARY
With statutory tolling, Petitioner's filing deadline expired August 2, 2019. Mr. Long is not entitled to equitable tolling. Because Petitioner waited until August 12, 2019 to file the Petition, dismissal is appropriate.
VII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED as untimely.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by October 7, 2019 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VIII. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on September 19, 2019.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE