Opinion
Case No. CIV-20-17-J
08-18-2020
ROBERT ALLEN SHIRLEY, Petitioner, v. CARL BEAR, Warden, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a pro se Oklahoma prisoner, seeks habeas relief under 28 U.S.C. § 2254 from his convictions and sentences on twenty-eight counts of child sexual abuse. See Docs. 1, 15. United States District Judge Bernard Jones referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4. Respondent has moved to dismiss the petition as time-barred and filed a brief in support of the motion. See Docs. 14-15. Petitioner has responded. See Doc. 17.
Citations to a court document are to its electronic case filing designation and pagination. Unless otherwise indicated, quotations are verbatim.
For the reasons discussed below, the undersigned Magistrate Judge recommends the court grant Respondent's motion to dismiss the petition as time-barred.
I. Procedural background.
Petitioner entered a blind guilty plea in the District Court of Cleveland County, Oklahoma, to twenty-eight counts of child sexual abuse. See Doc. 15, Ex. 14. The state district court sentenced Petitioner on January 22, 2015 to twenty-five years' imprisonment on each count. Id. Ex. 1. Petitioner did not timely move to withdraw his plea and his convictions and sentences became final on February 2, 2015. See id. Ex. 4. See also Canady v. Bryant, 779 F. App'x 528, 529 (10th Cir. 2019) ("Under Oklahoma law, a conviction arising from a guilty plea that is not appealed becomes final ten days after the entry of judgment and sentence." (citing Fisher v. Gibson, 262 F.3d 1135, 1138 (10th Cir. 2001)).
The court ordered counts two and three to run concurrent with each other and with count one, count four to run consecutive to count one, counts five, six, and seven to run concurrent with each other and count one, count eight to run consecutive to count four, counts nine through twenty-two to run concurrent with each other and with count one, count twenty-three to run consecutive to count eight, and counts twenty-four through twenty-eight to run concurrent with each other and with count one. See Doc. 15, Ex. 1.
Petitioner's ten-day period expired on a Sunday, so he had until the next business day to move to withdraw his plea. See Rule 1.5, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.
Petitioner filed his first application for post-conviction relief in the state district court on May 27, 2015, seeking permission to file a certiorari appeal out-of-time. See Doc. 15, Ex. 2. The state district court denied this application on November 17, 2015. Id. Ex. 3. Petitioner did not appeal the court's denial of his application to the Oklahoma Court of Criminal Appeals.
Petitioner filed his second application for post-conviction relief on April 14, 2016. Id. Ex 5. This time, Petitioner sought to appeal out-of-time the denial of the district court's November 17, 2015 order denying his first application for post-conviction relief because he had not received a certified copy of the court's denial. Id. Ex. 5, at 4-6. The district court granted Petitioner's request on July 11, 2016. Id. Ex. 6. Petitioner, however, failed to timely seek relief in the OCCA and that court dismissed his appeal on November 7, 2016. Id. Ex. 7. Despite dismissing his attempted appeal as untimely, the OCCA gave Petitioner explicit instructions regarding the proper procedures for seeking a post-conviction appeal out-of-time under its rules. Id. Ex. 7, at 2.
Petitioner filed a third post-conviction application on December 5, 2016. Id. Ex. 8. On April 6, 2017, the state district court again granted his application because its July 11, 2016 certified order had been sent to the wrong facility. See Shirley v. State, No. PC-2017-461, at *1 (Okla. Crim. App. Jun. 9, 2017). On May 4, 2017, Petitioner sought permission from the OCCA to file an appeal out-of-time. Id. On June 9, 2017, the OCCA granted Petitioner leave to appeal the district court's order within thirty days. Id. at 2-4.
The undersigned takes judicial notice of the docket reports and electronic filings in Petitioner's state collateral proceedings. 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).
In the ensuing appeal, the OCCA issued an order on October 4, 2017 affirming the district court's denial of Petitioner's application for post-conviction relief requesting a certiorari appeal out-of-time. See Doc. 15, Ex. 9. The court held Petitioner had "not established that, during the ten (10) day period within which he could have filed a motion to withdraw his plea, he was denied appeal proceedings through no fault of his own." Id. Ex. 9, at 2-3.
On June 21, 2017, Petitioner filed a motion for concurrent sentences under Okla. Stat. tit. 22 § 976. See id. Ex. 10. The state district court denied the motion on July 10, 2017, finding that the Petitioner was not eligible for sentence modification. Id. Ex. 11. Petitioner appealed the district court's order denying sentence modification but the OCCA declined jurisdiction in an order issued December 12, 2017, after Petitioner failed to file his petition in error within thirty days of the district court's order. Id. Ex. 15.
On February 28, 2018, Petitioner sought an appeal out-of-time which the state district court recommended granting. Id. Ex. 16; see also Shirley v. State, No. PC-2018-455, at *1-2 (Okla. Crim. App. May 18, 2018). On May 18, 2018, the OCCA granted Petitioner permission to appeal out-of-time. Id. at *2. Petitioner then appealed the district court's denial of his request for sentence modification. On January 3, 2019, the OCCA denied Petitioner's request for relief from the district court's order holding he had no right to appeal "from an order denying a request for modification of a sentence." Doc. 15, Ex. 12, at 2-3 (citing Okla. Stat. tit. 22, § 982a).
Petitioner filed his petition for habeas relief in this court on December 30, 2019. Doc. 1.
This Court received and file-stamped the petition on January 6, 2020. This Court, however, 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, 1227 (10th Cir. 1998) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). Here, Petitioner avers he signed the petition and placed it in the prison mailing system on December 30, 2019. Doc. 1, at 15.
II. Petitioner's habeas claims.
Petitioner raises fours claims in his habeas petition. In Ground One, Petitioner asserts his guilty plea was unknowing and involuntary due to ineffective assistance of counsel. Doc. 1, at 5. In Ground Two, Petitioner alleges ineffective assistance of counsel because counsel "abandoned" him during the ten days following his plea. See id. at 6-7. In Ground Three, Petitioner alleges his counsel was ineffective for failing to request concurrent sentences. Id. at 8. In Ground Four, Petitioner asserts he was not mentally competent to enter his plea "due to PTSD illness." See id. at 9-10.
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
Id. The statute includes a tolling provision for properly filed post-conviction actions:(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
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).
Other than the finality of his convictions and sentences, Petitioner's pleadings invoke no other starting date under § 2244(d).
Respondent contends that § 2244(d)(1)(A) applies to this case. Under Respondent's theory, Petitioner's conviction became final on February 2, 2015, ten days after he entered his plea, Petitioner's statutory one-year limitation period began to run the next day, and Petitioner's statutory year expired on February 3, 2016, thus barring his habeas petition from consideration. Doc. 15, at 2, 4.
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). The state district court sentenced Petitioner on January 22, 2015. See Doc. 15, Ex. 1. Petitioner did not timely move to withdraw his plea or file a direct appeal. As a result, Petitioner's convictions became final under § 2241(d)(1)(A) on February 2, 2015, when the ten-day period for Petitioner to move to withdraw his no contest plea expired. See Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 18, Ch. 18, App.; Canady, 779 F. App'x at 529. 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'" (citation omitted)). Petitioner's limitation period began February 3, 2015, and, absent tolling, expired one year later on February 3, 2016.
B. Availability and effect of tolling on the limitation period.
1. Statutory tolling.
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 merely lists his state court filings. Doc. 1, at 13. Respondent argues that Petitioner is entitled to tolling only during the pendency of his first post-conviction application from May 27, 2015 through December 17, 2015. Doc. 15, at 5-6. He argues all of Petitioner's other collateral proceedings were either improperly filed or were filed outside the expiration of the limitations period. Id. at 6-7. By Respondent's account, 114 days of Petitioner's statutory year had expired before Petitioner tolled the limitations period by filing his first post-conviction application. Id. at 5. He contends the statute of limitations was tolled from May 27, 2015, but "resumed running on December 17, 2015, continued to run and lapsed 251 days later, on August 24, 2016." Id. at 7. Alternatively, Respondent contends that even tolling the limitations period from May 27, 2015 through January 3, 2019 (the date the OCCA denied Petitioner's attempted appeal of the district court's denial of sentence modification) that Petitioner's habeas petition, filed more than 251 days later, is still untimely. See id. at 7-8 n.8. The undersigned reaches the same conclusion that the petition is untimely but for different reasons.
Even though Petitioner did not perfect a timely appeal of the district court's denial of his first post-conviction application, Respondent has properly factored in Petitioner's thirty-day appeal time allowed under OCCA rules. See Doc. 15, at 5; see also Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000) (holding that "[R]egardless of whether a petitioner actually appeals a denial of a post-conviction application, the limitations period is tolled during the period in which the petitioner could have sought an appeal under state law.").
a. May 27, 2015 post-conviction application.
Petitioner waited until 114 days after his convictions and sentences were final before he filed his first application for post-conviction relief. See id. Ex. 2. This left Petitioner with 251 days remaining in his statutory year (365-114=251). Petitioner's filing tolled the limitations period. See 28 U.S.C. § 2244(d)(2). The state district court denied Petitioner's application on November 17, 2015. Id. Ex. 3. Even though he did not appeal, Petitioner had thirty days under state law to appeal the district court's denial. Gibson, 232 F.3d at 804. Thus, Petitioner's first post-conviction application tolled the limitations period until December 17, 2015, and resumed the next day, on December 18, 2015. Petitioner is entitled to 205 days of tolling.
b. April 14, 2016 post-conviction application.
Petitioner waited another 118 days before filing his second post-conviction application on April 14, 2016, requesting an appeal-out-time. Id. Ex. 5. This left Petitioner with 133 days remaining of his statutory year (251-118=133).
The state district court granted Petitioner's request on July 11, 2016. See id. Ex. 6. Petitioner then had thirty days to seek relief in the OCCA. Id. Ex. 7, at 1 (instructing that OCCA Rule 5.2(C) required Petitioner to "file a petition in error within thirty (30) days from the date the final order is filed with the Clerk of the District Court"). Petitioner did not do so and the OCCA later dismissed the appeal. Id. Because Petitioner did not timely appeal, he is only entitled to 118 days of tolling, that is from April 14, 2016 through August 10, 2016 (a date thirty days after the district court's order). See, e.g., Gibson, 232 F.3d at 807 (tolling the petitioner's limitations period from the time he filed his application for an appeal out-of-time in the state district court until the date his thirty days to appeal to the OCCA had expired). Petitioner's statute of limitations resumed running on August 11, 2016.
c. December 5, 2016 post-conviction application.
On December 5, 2016, after another 116 days had expired in his one-year limitations period, Petitioner filed his third application for post-conviction relief. Doc. 15, Ex. 8. At that time, Petitioner had seventeen days left in his statutory year (133-116=17). The OCCA resolved the application in an order entered October 4, 2017. Id. Ex. 9. So, the statute of limitations was tolled for 304 days and resumed running on October 5, 2017. See, e.g., Weibley v. Kaiser, 50 F. App'x 399, 400 (10th Cir. 2002) (tolling limitations period from date the petitioner filed his request for an appeal out-of-time until the date "the OCCA affirmed the denial of his application"). Petitioner's one-year statute of limitations expired seventeen days later, on October 23, 2017. Petitioner did not file his habeas corpus petition until December 30, 2019, over two years later. See Doc. 1.
The expiration date fell on Sunday, October 22, 2017, so Petitioner had until the next day to timely file his habeas corpus petition.
d. June 21, 2017 motion for concurrent sentences.
Petitioner filed a motion for concurrent sentences on June 21, 2017. Id. Ex. 10. The state district court denied the motion on July 10, 2017. See id. Ex. 11. Petitioner appealed the denial but the OCCA declined jurisdiction on Petitioner's untimely appeal on December 12, 2017. Id. Ex. 15. Because Oklahoma law does not provide for an appeal of a motion for sentence modification, the only tolling provided by this filing was subsumed within the time Petitioner's third application for post-conviction relief was pending. See, e.g., Doby v. Dowling, 632 F. App'x 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 v. Kholi, 562 U.S. 545, 547 (2011) and Okla. Stat. tit. 22, § 982a); see also Doc. 15, Ex. 12, at 2.
Even if the undersigned allowed for thirty days of appeal time or until December 12, 2017, when the OCCA declined jurisdiction, Petitioner's one-year limitations period would have expired either within the time-period already tolled by his third application for post-conviction relief (August 28, 2017), or by December 29, 2017.
e. Petitioner's fourth post-conviction application.
Petitioner filed his fourth application for post-conviction relief seeking another appeal out-of-time on February 28, 2018, which the OCCA resolved on January 3, 2019. Doc. 15, Exs. 12, 16. But the statutory tolling provision does not apply to applications for post-conviction relief filed after the one-year limitation period has expired. See Green v. Booher, 42 F. App'x 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 this application was not filed within the one-year limitation period, he is not entitled to statutory tolling of the federal limitation period during its pendency.
Respondent is correct that even if the court granted Petitioner tolling from his first post-conviction application until the OCCA's January 3, 2019 decision, his petition, filed more than 251 days later, or after September 12, 2019, would still be untimely.
2. Equitable tolling.
Unless equitable tolling applies to Petitioner's petition—filed over two years after the statutory deadline, the petition is untimely. "[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, 232 F.3d at 808 (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 does not argue for equitable tolling in his petition. See Doc. 1, at 13. He does assert in his response to the motion to dismiss that he "should be granted applicable tolling due to ineffective assistance of counsel." Doc. 17, at 2. He states he has diligently sought an evidentiary hearing in state court and explains that he was denied a certiorari appeal through no fault of his own but through his plea counsel's deficient performance. Id. at 3. The undersigned liberally considers whether Petitioner has asserted extraordinary circumstances which stood in his way and prevented his timely filing.
Petitioner's also states he suffers from PTSD which has resulted in "broken relationships." Doc. 17, at 1. Equitable tolling may be warranted "in circumstances such as adjudication of incompetence, institutionalization for mental incapacity, or evidence that the individual is not capable of pursuing his own claim because of mental incapacity." Rawlins v. Newton-Embry, 352 F. App'x 273, 276 (10th Cir. 2009) (internal quotation marks and alterations omitted). Petitioner does not allege that during the relevant time-period he was ever adjudicated incompetent, institutionalized, or was incapable of pursuing his claims. While Petitioner states he is "a military veteran with limited mental health and health functions," he does not allege any mental incapacity during the relevant time period and the record reflects Petitioner's capable pursuit of his own claims during this time. There is thus no basis for equitable tolling under these circumstances. See, e.g., O'Bryant v. Oklahoma, 568 F. App'x 632, 636 (10th Cir. 2014) (denying equitable tolling based on a PTSD claim which was "remarkably general and conclusory" and explaining that "federal courts will apply equitable tolling because of a petitioner's mental condition only in cases of profound mental incapacity such as that resulting in institutionalization or adjudged mental incompetence").
Petitioner refers to his counsel's ineffectiveness in failing to secure him a certiorari appeal after Petitioner pleaded guilty to twenty-eight counts of child sexual abuse. Doc. 17, at 2-3. Petitioner "has not made sufficient allegations to support his [attorney] abandonment argument." Washington v. Dowling, 793 F. App'x 667, 670 (10th Cir. 2019). Even assuming abandonment during the ten-day window which caused the one-year limitation period to commence, those "circumstances do nothing to demonstrate that, during the following 365-day period, he pursued his rights diligently but some extraordinary circumstance prevented him from filing a timely habeas petition." Id. at 671. In fact, Petitioner waited several months to first raise his attorney abandonment claim and then waited over two years after his limitations period expired to file his habeas corpus petition. Based on Petitioner's lack of diligence, the undersigned recommends against applying equitable tolling under these circumstances.
In denying Petitioner's third post-conviction application, the OCCA determined that the district court had "found that Petitioner had acknowledged to the [plea court] that he understood that if he wished to file an application to withdraw his plea or a notice of intent to appeal he must do so within ten (10) days of the date his Judgment and Sentence was pronounced." See Doc. 15, Ex. 9, at 2. The OCCA determined the district court also found that "Petitioner had not offered any proof that Petitioner himself had taken any action during the ten (10) day period, such as attempting to contact his counsel, to initiate appeal proceedings as required." Id. --------
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 does not assert an actual, as opposed to a legal, innocence claim. See, e.g., Bousley v. United States, 523 U.S. 614, 623 (1998) ("[A]ctual innocence means factual innocence, not mere legal insufficiency." (internal quotation marks omitted)); see also Laurson v. Leyba, 507 F.3d 1230, 1233 (10th Cir. 2007) (holding that the petitioner's claim that his guilty plea was involuntary was an issue of legal, not factual, innocence). There is thus no basis for bypassing the statute of limitations bar here.
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. 14-15.
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 September 8, 2020. 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 this 18th day of August, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE