From Casetext: Smarter Legal Research

Russell v. Allbaugh

Jul 31, 2018
Case No. CIV-18-379-F (W.D. Okla. Jul. 31, 2018)


Case No. CIV-18-379-F


KENNETH R. RUSSELL JR., Petitioner, v. JOE ALLBAUGH, Respondent.


Petitioner Kenneth R. Russell Jr., a state prisoner appearing pro se, brings this action pursuant to 28 U.S.C. § 2254 seeking a writ of habeas corpus. United States District Judge Stephen P. Friot has referred this matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned has examined the Petition (Doc. No. 1) and recommends dismissal.


In this action, Petitioner challenges his conviction upon guilty plea on May 15, 2006, in the District Court of Oklahoma County, Oklahoma, on various counts of robbery, burglary, kidnapping, larceny, assault and battery, and conspiracy. See Pet. at 1. Petitioner was sentenced to nine terms of imprisonment ranging from 10 to 25 years each, all to run concurrently. See Trial Ct. First Postconviction Order (Doc. No. 1-3) at 1-2.

References to filings in this Court use the CM/ECF pagination.

Petitioner did not initially move to withdraw his plea or seek a direct appeal or postconviction relief, as permitted by state law. See Pet. at 2-3, 6. Nearly five years later, on January 31, 2011, Petitioner filed an application for postconviction relief in the state district court. Pet. at 3. This application was denied in March 2011, and Petitioner appealed to the Oklahoma Court of Criminal Appeals ("OCCA"). Id.; see Trial Ct. First Postconviction Order at 1-3; OCCA First Postconviction Order (Doc. No. 1-4) at 1-3. The OCCA affirmed the denial of postconviction relief on June 17, 2011. See OCCA First Postconviction Order at 1-3.

On February 2, 2016, Petitioner filed a second application for postconviction relief; he supplemented that application with a "Pro-Se Motion to Enforce Plea Agreement/Collateral Attack on Sentence" in August 2016. See Pet. at 3-4; Trial Ct. Second Postconviction Order (Doc. No. 1-2) at 2. After the state district court denied relief on this postconviction effort, Petitioner appealed. See Trial Ct. Second Postconviction Order at 1-5. The OCCA affirmed the district court's disposition on January 23, 2018. See OCCA Second Postconviction Order (Doc. No. 1-1) at 1-3.

Petitioner then filed the instant § 2254 Petition in this Court on April 19, 2018. See Pet. at 19; Fleming v. Evans, 481 F.3d 1249, 1255 n.2 (10th Cir. 2007). Liberally construed, Petitioner asserts that he is entitled to habeas relief because: (1) his plea was improperly accepted and his sentence unlawfully imposed because he was not advised of application of Oklahoma's "85% Rule" to certain of his sentences; and (2) the state courts found his postconviction claims regarding the 85% Rule to be procedurally barred rather than considering them under plain-error review. See Pet. at 5-8, 9-12.

In Oklahoma, individuals convicted of certain felony offenses shall "serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole." Okla. Stat. tit. 21, § 13.1. "Persons convicted of these offenses shall not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than eighty-five percent (85%) of the sentence imposed." Id.


A. Screening Requirement

The Court is required to review habeas petitions promptly and to dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." R. 4, R. Governing § 2254 Cases in U.S. Dist. Cts. The Rule allows the district court to sua sponte dismiss a petition for writ of habeas corpus if its untimeliness is "clear from the face of the petition itself." Kilgore v. Att'y Gen. of Colo., 519 F.3d 1084, 1089 (10th Cir. 2008); accord Day v. McDonough, 547 U.S. 198, 209 (2006) ("[D]istrict courts are permitted . . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition.").

B. The Applicable Limitations Period

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets forth a one-year statute of limitation for habeas petitioners challenging the validity of their conviction or sentence:

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. 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.
28 U.S.C. § 2244(d)(1)(A)-(D).

The one-year limitations period generally runs from the date the judgment became "final" under § 2244(d)(1)(A), unless a petitioner alleges facts that implicate § 2244(d)(1)(B), (C), or (D). See Preston v. Gibson, 234 F.3d 1118, 1120 (10th Cir. 2000). Finding that only § 2244(d)(1)(A) is applicable, the undersigned considers the timeliness of the Petition under that provision.

Petitioner arguably attempts to invoke § 2244(d)(1)(D) by stating that he did not know about application of the 85% Rule "until well past his opportunity to withdraw the plea." Pet. at 6. But Petitioner indisputably knew about the 85% Rule by the time he filed his first postconviction application—in which he addressed the application of that Rule to his underlying state convictions and sentences—on January 31, 2011. See id. at 3. Thus, even assuming § 2244(d)(1)(D)'s applicability, Petitioner's habeas deadline expired no more than one year after that date—i.e., on or around February 1, 2012. See 28 U.S.C. § 2244(d)(1)(D). The instant § 2254 Petition was not filed until April 19, 2018, and (even allowing for statutory tolling from January 31, 2011, until June 17, 2011, as discussed infra) would therefore be untimely under § 2244(d)(1)(D).

C. Discussion

The date of the judgment and sentence in the conviction under attack is May 15, 2006. Pet. at 1. Oklahoma law provides a specific course of procedure for the appeal of a conviction based upon a guilty plea. See Clayton v. Jones, 700 F.3d 435, 441 (10th Cir. 2012). First, "the defendant must file an application in the trial court to withdraw his plea within ten days of the judgment and sentence, with a request for an evidentiary hearing." Id. (citing Okla. Stat. tit. 22, ch. 18 app., R. 4.2(A)). "If the trial court denies the motion to withdraw, the defendant may then appeal by way of a petition for writ of certiorari" to the OCCA. Id. (citing Okla. Stat. tit. 22, § 1051(a); id. ch. 18 app., R. 4.2(D)). If, however, the defendant fails to file an application to withdraw his or her guilty plea within the ten-day period, the defendant's conviction is considered final upon the conclusion of that period. See Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006).

Petitioner did not seek to withdraw his plea or otherwise challenge his conviction within the applicable ten days. See Pet. at 2, 6; Trial Ct. First Postconviction Order at 2. As a result, Petitioner's conviction became final on May 25, 2006. See Clark, 468 F.3d at 713. Assuming the limitation period under § 2244(d)(1)(A) began to run the next day, Petitioner had until May 26, 2007, to file a federal habeas action. See 28 U.S.C. § 2244(d)(1)(A); Harris v. Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011) (citing United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003)). Because Petitioner did not file his Petition until nearly eleven years after that date, this habeas action—absent tolling or an exception—is untimely under 28 U.S.C. § 2244(d)(1)(A).

1. Statutory Tolling

For petitions brought under 28 U.S.C. § 2254, the § 2244(d)(1) one-year limitations period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); Clark, 468 F.3d at 714 (explaining that only postconviction applications "filed within the one year allowed by AEDPA will toll the statute of limitations"). Here, Petitioner's first state-court postconviction attempt was not filed until January 2011, long after Petitioner's one-year deadline expired on May 26, 2007. See Pet. at 3. Petitioner's application for postconviction relief therefore did not statutorily toll his § 2244(d)(1)(A) limitations period. See 28 U.S.C. § 2244(d)(2); Clark, 468 F.3d at 714.

The district court's first postconviction order also refers to a "Motion for Judicial Review" filed by Petitioner on April 18, 2007, and denied by the district court on May 4, 2007. See Trial Ct. First Postconviction Order at 2. Even assuming this filing constituted "a properly filed application" for postconviction or collateral review, 28 U.S.C. § 2244(d)(2), its pendency only tolled Petitioner's one-year period for 17 days. The Petition would nevertheless be more than ten years late. --------

2. Equitable Tolling

The AEDPA filing deadline may be equitably tolled in "extraordinary circumstances." Clark, 468 F.3d at 714 (internal quotation marks omitted). To be entitled to equitable tolling, Petitioner must "show both extraordinary circumstances preventing timeliness and diligent pursuit of his claim." See id.; accord Holland v. Florida, 560 U.S. 631, 649 (2010); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Circumstances appropriate for equitable tolling include "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." Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000).

Petitioner presents no extraordinary circumstance that prevented his timely pursuit of federal habeas corpus relief. He implies that he would not have accepted his plea bargain had his trial counsel informed him of the 85% requirement, but he sets forth no facts showing any "serious instances of attorney misconduct" that could warrant equitable tolling. See Pet. at 5, 6-7; Holland, 560 U.S. at 651-52. Further, Petitioner presents no facts connecting his state trial counsel to his federal habeas effort and has offered "no explanation" "for the lengthy time period that elapsed between the date his state conviction became final" (May 25, 2006) "and the date he attempted to pursue any type of post-conviction relief" (January 31, 2011). Brown v. Poppel, 98 F. App'x 785, 788 (10th Cir. 2004).

The lack of "extraordinary circumstances preventing timeliness" and lack of "diligent pursuit" of Petitioner's federal claims are clear on the face of the Petition. Petitioner has not shown that he is entitled to equitable tolling. See Clark, 468 F.3d at 714; Brown, 98 F. App'x at 788.

3. Actual-Innocence Exception

"[A] credible showing of actual innocence" based on newly discovered evidence "may allow a prisoner to pursue his constitutional claims" as to his conviction, under an exception to procedural and limitations-based bars—including 28 U.S.C. § 2244(d)(1)—established for the purpose of preventing a miscarriage of justice. See McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013). Successful actual-innocence claims are rare due to the demanding evidentiary requirements for such claims. See id. at 383, 392, 401; House v. Bell, 547 U.S. 518, 538 (2006). "[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, 'it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House, 547 U.S. at 536-37 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord McQuiggin, 569 U.S. at 399 (applying the same standard to petitions asserting actual innocence as a gateway to raise habeas claims that are time-barred under § 2244(d)(1)). Such claims must be based on "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).

Here, Petitioner's pleading makes no reference to his innocence; his factual allegations concern his lack of knowledge at the time of the entry of the plea and the allegedly improper review undertaken by the state courts. See Pet. at 5, 6-8, 9-12. Petitioner's claimed improprieties in his sentence do not amount to a contention that he is actually innocent of the felony crimes of which he was convicted. See Schlup, 513 U.S. at 327-29. Petitioner's claims, even liberally construed, therefore do not invoke the actual-innocence equitable exception and do not permit continued consideration of his Petition by this Court. See McQuiggin, 569 U.S. at 386; Bousley, 523 U.S. at 623.

D. Summary

Petitioner's statute of limitations to file this habeas action expired on May 26, 2007, and he is not entitled to statutory or equitable tolling or to an exception based upon actual innocence. Because Petitioner did not file his Petition until April 19, 2018, the Court should dismiss the Petition as untimely under 28 U.S.C. § 2244(d)(1)(A).


For the foregoing reasons, it is recommended that the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 1) be dismissed without prejudice as untimely.


Petitioner is advised of his right to file an objection to the Report and Recommendation with the Clerk of this Court by August 21, 2018, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the present case. The Clerk of Court is directed to serve copies of the Petition and this Report and Recommendation on Respondent and on the Attorney General of the State of Oklahoma through electronic mail sent to

ENTERED this 31st day of July, 2018.




Summaries of

Russell v. Allbaugh

Jul 31, 2018
Case No. CIV-18-379-F (W.D. Okla. Jul. 31, 2018)
Case details for

Russell v. Allbaugh

Case Details

Full title:KENNETH R. RUSSELL JR., Petitioner, v. JOE ALLBAUGH, Respondent.


Date published: Jul 31, 2018


Case No. CIV-18-379-F (W.D. Okla. Jul. 31, 2018)