Case No. CIV-18-443-C
REPORT AND RECOMMENDATION
Anthony C. Decker (Petitioner), an Oklahoma state prisoner appearing through counsel, brings this action under 28 U.S.C. § 2254, seeking habeas relief from a 1997 conviction and sentence. Doc. 1. United States District Judge Robin J. Cauthron referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondent has filed a motion to dismiss the petition as time barred, Doc. 7, and a brief in support of the motion. Doc. 8. Petitioner has responded. Doc. 11.
Citations to a court document are to its electronic case filing designation and pagination. Unless otherwise indicated, quotations are verbatim.
For the reasons set forth below, the undersigned Magistrate Judge recommends the court grant Respondent's motion to dismiss the petition as time-barred.
I. Procedural background.
Petitioner was tried and convicted of one count of robbery with a firearm and one count of shooting with intent to kill after a jury trial in the District Court of Garfield County. Doc. 8, Ex. 2, at 1. On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's conviction and sentence on July 7, 1998. Id. at 1-2.
On September 30, 2003, Petitioner, represented by different counsel, filed his first request for post-conviction relief, raising the following grounds:
1. The district court should modify Petitioner's sentences to run concurrently;
2. The evidence, in view of favorable affidavits from Petitioner's co-defendants obtained after Petitioner's conviction, is insufficient to support a conviction for shooting with intent to kill; and
3. Petitioner's sentence was disproportionate to the sentences Petitioner's co-defendants received, violating Petitioner's right to equal protection under the law.
Id. Ex. 3, at 11-26.
In the Affidavit of Petitioner's co-defendant, Larry Dillard, Dillard purported to take sole responsibility for the shooting and stated that neither Petitioner nor co-defendant Mongo Mitchell had left the car at the time he shot the victim and that neither co-defendant knew Dillard had a gun and was planning to shoot the victim. Doc. 8, Ex. 3, at 27-29, Dillard executed the Affidavit after Dillard's conviction.
Codefendant Mongo Mitchell also executed his Affidavit after Mitchell's conviction. Id. at 3032. It, too, states that neither he nor Petitioner had exited the car at the time of the shooting and that neither knew Dillard had a gun and was planning to shoot the victim.
The Garfield County District Court denied Petitioner's application for post-conviction relief on November 26, 2003. Id. Ex. 4. Petitioner appealed, and the OCCA affirmed the district court's denial of post-conviction relief on March 26, 2004. Id. Ex. 5. The OCCA held that the district court lacked jurisdiction to modify Petitioner's sentence, that sufficiency of the evidence had been challenged on direct appeal rendering Petitioner's second ground for relief barred by res judicata, and that Petitioner had waived his third ground for relief because it could have been raised on direct appeal. Id. at 2-3. As to the third claim for relief, the OCCA found that Petitioner's counsel on direct appeal was not ineffective in failing to raise an equal protection claim on direct appeal because appellate counsel had urged the court to find Petitioner's sentences to be excessive. Id. at 3-4.
Petitioner filed his second application for post-conviction relief on February 7, 2017. Id. Ex. 6. Petitioner raised one claim: that newly discovered evidence of prosecutorial misconduct, not previously discoverable, affected the fundamental fairness of the proceedings and deprived Petitioner of a fair trial. Id. at 2. Petitioner supported this claim by producing a July 28, 2016 notarized statement from his former fiancée, Misty Cornforth, a trial witness, purporting to recant a portion of her testimony. Id. at 11. Ms. Cornforth claimed the prosecutor had intimidated her into falsely testifying that she could identify Petitioner on a surveillance videotape of the crime. Id. Although Ms. Cornforth had also testified about Petitioner's actions she had witnessed after the crime that indicated Petitioner's guilt, she recanted only the portion of her testimony during which she purported to identify Petitioner on the surveillance videotape. See id.
Petitioner secured counsel to represent him in his second post-conviction action, and the district court held an evidentiary hearing on August 21, 2017. Both Ms. Cornforth and the prosecutor testified. Id. Ex. 10. Additionally, the district court again considered the exculpatory affidavits from Petitioner's co-defendants that had been presented to the court in support of Petitioner's first application for post-conviction relief. Id. Ex. 7, at 1.
In addition to relevant parts of the evidentiary transcript attached to the motion to dismiss, the State has conventionally filed the entire transcript of the evidentiary hearing in Case No. PC-2017-1115 (Tr.).
The district court denied post-conviction relief on October 23, 2017. Id. at 1-5. The OCCA affirmed the district court's denial of post-conviction relief on April 18, 2018. Id. Ex. 8. Petitioner filed the instant petition for habeas relief on May 7, 2018. Doc. 1.
II. Petitioner's claim.
Petitioner raises one claim in this habeas petition:
The State Court's determination should be reviewed de novo and not afforded deference under the AEDPA as the state court made an unreasonable determination of the facts in light of the evidence.
Id. at 10.
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
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. § 2244(d)(1)(A)-(D). The statute includes a tolling provision for properly filed post-conviction actions:
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. § 2244(d)(2).
1. Starting date under 28 U.S.C. § 2244(d)(1)(A).
Respondent contends that § 2244(d)(1)(A) applies to this case. Under Respondent's theory, Petitioner's conviction became final on October 5, 1998, ninety days after the OCCA affirmed his conviction, Petitioner's statutory one-year limitation period began to run the next day, and Petitioner's statutory year expired on October 6, 1999, thus barring his habeas petition from consideration. Doc. 8, at 1.
As Respondent notes, 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). Under Supreme Court law, "direct review" does not conclude until the availability of direct appeal to the state courts and request for review to the Supreme Court have been exhausted. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). The Rules of the Supreme Court allow ninety days from the date of the conclusion of direct appeal to seek certiorari. U.S. S. Ct. Rule 13.1. "If a prisoner does not file a petition for writ of certiorari with the United States Supreme Court after his direct appeal, the one-year limitation period begins to run when the time for filing a certiorari petition expires." United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003) (internal quotations omitted). 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). If the starting date for the commencement of Petitioner's limitation period is the date his conviction became final under § 2244(d)(1)(A), then his habeas petition is barred by AEDPA's limitation period, absent tolling.
2. Starting date under 28 U.S.C. § 2244(d)(1)(D).
Petitioner raises two arguments to refute the proposition that his habeas petition was untimely filed. First, Petitioner argues—without citation—that his conviction did not become "final" until after the OCCA affirmed the denial of his second application for post-conviction relief. Doc. 1, at 7-8. Petitioner bases this argument on the evidentiary hearing held by the district court which Petitioner argues "expanded the record with the conviction no longer being final." Id.; Doc. 11, at 1. There is no support for this construction of AEDPA's doctrine regarding the finality of a conviction.
Next, Petitioner loosely suggests the starting date for the one-year period of limitation was nearly eighteen years after his conviction became final. Doc. 1, at 16-19; Doc. 11, at 2-3. Petitioner contends Ms. Cornforth's July 28, 2016 notarized statement was "newly discovered and implicated a prosecutorial misconduct claim." Doc. 11, at 2-3. Ms. Cornforth stated she wished to recant the part of her testimony during which she identified Petitioner as one of the people in a surveillance videotape that recorded the robbery and shooting leading to Petitioner's conviction. Doc. 8, Ex. 6, at 11.
For Petitioner's one-year limitation period to start from the date he learned Ms. Cornforth would recant her testimony, Petitioner would have to demonstrate that he could not have discovered, through the exercise of due diligence, the factual predicate of his claim—that, for whatever reason, Ms. Cornforth had falsely testified when she identified him as one of the people in the surveillance videotape. See Eastwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (holding petitioner had demonstrated due diligence in discovering the factual predicate of his claim, consisting of a newly released case relevant to his conviction-and noting the appropriate start date for the limitations period was not the opinion's release date, but the date it "bec[a]me access[i]ble to the population in the [prison's] law library"). Petitioner only states Ms. Cornforth "chose to recant her testimony." Doc. 1, at 11.
Petitioner has not demonstrated that his one-year limitation period should have started to run on any date other than October 6, 1998, the day after his conviction became final. If Petitioner were actually innocent of the crime, then he would have known Ms. Cornforth's testimony was not truthful when he heard her testify at his trial—yet Petitioner does not allege he took any action to pursue evidence to prove Ms. Cornforth's testimony was perjured. See Craft v. Jones, 435 F. App'x. 789, 791 (10th Cir. 2011) (holding the petitioner knew about the factual predicate of his self-defense claim "on the date of the" crime, not the date (nearly five years later) when he obtained an exculpatory affidavit from a witness).
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). Of course, 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."). Petitioner is not entitled to statutory tolling of the federal limitation period.
2. Equitable tolling.
Respondent contends Petitioner is not entitled to equitable tolling because he did not diligently pursue his rights. "[A] [habeas] petitioner is entitled to equitable tolling 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), Petitioner has not demonstrated specific facts to support a claim of extraordinary circumstances, nor has he demonstrated he diligently pursued his rights. See Yang v. Archletta, 525 F.3d 925, 928 (10th Cir. 2008).
Petitioner contends he is entitled to application of the "miscarriage of justice" exception to the time bar imposed by AEDPA's one-year limitation period. Doc. 11, at 4. Petitioner maintains "[t]he text of § 2244(d)(1) contains no clear command countering the courts' equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition." Id.
While Respondent fails to recognize the Supreme Court's clarification of "actual-innocence gateway claim[s]" provided in McQuiggin v. Perkins, 569 U.S. 383, 387 (2013), Petitioner cites McQuiggin in support of his contention that the new evidence he has provided—Ms. Cornforth's statement and his co-defendants' affidavits—constitute proof of his actual innocence and entitle him to the miscarriage of justice exception to AEDPA's time bar. Doc. 1, at 16-19; Doc. 11, at 2-4, 7.
Although the affidavits of Petitioner's co-defendants were technically not "new evidence," the state district court considered them in the decision after the post-conviction evidentiary hearing. Doc. 8, Ex. 7, at 1. --------
A miscarriage of justice exception—here, a tenable showing of actual innocence—opened a gateway that would allow petitioners barred by a procedural default to assert their constitutional claims in a federal habeas action. Schlup v. Delo, 513 U.S. 298 (1995); House v. Bell, 547 U.S. 518 (2006). McQuiggin extended this holding to time-barred petitioners filing their first petitions for habeas relief, if such petitioners present new, reliable evidence supporting a tenable claim of actual innocence. 569 U.S. at 386. A federal habeas court, faced with an actual-innocence gateway claim, "should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown." Id. at 387.
Successful actual innocence pleas are rare:
"[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct. 851.
Id. at 386-87.
Before applying the actual innocence exception to AEDPA's time bar, this Court must determine whether Ms. Cornforth's statement recanting some of her testimony constitutes new, reliable evidence of Petitioner's actual innocence. Then, this Court would have to determine that no juror, acting reasonably, would have voted to find Petitioner guilty if Ms. Cornforth had not identified Petitioner as one of the people on the surveillance videotape of the robbery. Only then could this Court proceed to the merits of Petitioner's claim that prosecutorial misconduct denied him his due process right to a fair trial.
During the eighteen years after Petitioner's conviction, he took no steps to discover why Ms. Cornforth falsely testified that she could identify him as one of the people recorded on the surveillance videotape. Had he not appeared on the videotape, he would have known Ms. Cornforth testified falsely when he heard her trial testimony. See supra § III.A.2. Petitioner's lack of diligence weighs against a conclusion that Ms. Cornforth's testimony, presented at the state post-conviction evidentiary hearing, is new, reliable evidence of Petitioner's actual innocence. Ms. Cornforth testified at the evidentiary hearing that no one had ever asked her to recant her testimony and that she had come forward on her own because she felt guilty about her perjured testimony. See Tr. at 23.
The undersigned concludes that the evidence Petitioner presents does not constitute new, reliable evidence of actual innocence sufficient to overcome AEDPA's time bar, and the undersigned recommends granting Respondent's motion to dismiss as untimely filed.
IV. Recommendation and notice of right to object.
Petitioner is not entitled to relief in the district court because his petition is time-barred, and the undersigned recommends granting Respondent's motion to dismiss.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 11, 2018 under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a 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, 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 21st day of August, 2018.
UNITED STATES MAGISTRATE JUDGE